Constitutional lawyers Mkangi, Waiganjo on Nairobi fate should Sonko be charged

By Brian Okoth and Susan Kogi

Constitutional lawyer Bobby Mkangi has ruled out the possibility of a by-election in Nairobi should Governor Mike Sonko be charged with graft, and, consequently, forced to step aside in compliance with Justice Mumbi Ngugi’s directive.

Mkangi says if Sonko is dragged to court, and charged with graft, Nairobi County Assembly Speaker Beatrice Elachi would serve – in acting capacity – as the city governor until Sonko’s case is heard and determined.

“In absence of a Deputy Governor, like in Nairobi, then the County Assembly Speaker assumes, in acting capacity, the roles of a governor until the elected county chief is declared guilty, or acquitted of corruption charges. Yes, the Constitution says that the Speaker can only assume the gubernatorial functions for 60 days, and a by-election, follows, thereafter. But, that only happens when the governor’s seat is vacant as a result of death, resignation, mental incapacitation, or he or she has been pushed out after being declared guilty of a criminal offence attracting a jail term of at least 12 months. In Sonko’s case, none of the above has happened, and therefore, he remains the substantive County Government leader, only that he might be suspended in compliance with a court order.”

Chapter 11, Part Two, Section 181 of the Constitution stipulates that a governor can be removed from office on four grounds, which include: (a) gross violation of the Constitution or any other law; (b) where there are serious reasons for believing that the county governor has committed a crime under national or international law; (c) abuse of office or gross misconduct; or (d) physical or mental incapacity to perform the functions of office of county governor.

Chapter 11, Part Two, Section 182 of the Constitution further says the office of the county governor shall become vacant if the holder of the office: (a) dies; (b) resigns, in writing, addressed to the speaker of the county assembly; (c) ceases to be eligible to be elected county governor under Article 180(2); (d) is convicted of an offence punishable by imprisonment for at least twelve months; or (e) is removed from office under the Constitution.

Clause 4 of Section 182 says if a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor.

Clause 5 of Section 182 of Chapter 11 of the Constitution stipulates that the County Assembly Speaker can only hold the office in acting capacity for 60 days, after which a by-election should be held.

“If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor,” says the Constitution.

Mkangi, however, says a by-election is out of the equation because the grounds on which it can be called for have not been met, and, therefore, Elachi could act as Nairobi Governor beyond the stipulated 60 days.

“If Sonko is charged, there won’t be absolute vacancy; he is not dead, he has not resigned, he has not been jailed for more than 12 months, and he has not been removed from office based on Constitutional provisions. Therefore, the Office of the Governor still has a legitimate holder, only that he won’t be allowed to enjoy certain privileges,” said Mkangi.

“When that happens, then the Speaker can act as Governor for as long as the elected governor’s case remains in court,” said Mkangi.

Elachi won't assume gubernatorial duties: Waiganjo

However, another Constitutional lawyer, Kamotho Waiganjo says Speaker Elachi cannot assume gubernatorial duties because Sonko remains the lawfully elected governor, and that the only way the Speaker can take up the governor's functions is when the county leader is successfully impeached, or when he or she it out of office as stipulated in Chapter 11, Section 182 of the Kenyan Constitution.

"There will be a gap in the executive leadership of the county government, because, legally, Elachi cannot take up Sonko's duties, given the governor has not vacated office on grounds of Chapter 11, Section 182 of the Constitution. As the country's leadership seeks to amend the Supreme Law, those are some of the gaps they should address," said Waiganjo.

A section of leaders foresee a Constitutional crisis warranting interpretation by the Constitutional court, or even the Supreme Court.

“Gov Sonko will certainly be released on bond but remain barred from office. There being no D/Gov, Speaker Elachi will act but only for 60 days. A constitutional crisis looms as no election can be held thereafter since technicaly, Sonko will not have vacated office,” tweeted former Kakamega Senator Boni Khalwale on Friday, December 6.