Court moves hearing of Mike Sonko impeachment case to January 4
An application by impeached Nairobi Governor Mike Mbuvi Sonko to stop the Independent Electoral and Boundaries Commission (IEBC) from conducting a by-election will now be heard on January 4 and not February 3, 2021.
Justice James Makau reviewed the dates following a request by Mr Sonko who said that the IEBC had already set February 18 as the date for the by-election.
Since the matter is urgent due to timelines stipulated in the Constitution for filling of vacancy in the governor’s office, Justice Makau allowed the application to be heard at a time when the judges are on Christmas recess which ends on January 15. The file will be placed before the holiday duty judge Anthony Mrima.
Justice Makau also directed Mr Sonko’s lawyers to furnish IEBC and the other respondents in the case with copies of the court documents by Wednesday evening.
The respondents, who include the Senate and the Nairobi County Assembly, will be required to file their responses within two days and not 15 days as ordered earlier.
In urging court to bar IEBC from conducting the by-election, Mr Sonko argues that the move would be prejudicial to his rights, which he says, were violated by the Senate and the County Assembly.
Through lawyers Evans Ondieki and Martin Nyamu, the ousted governor argues that he will suffer irreparable damage not compensatable in monetary terms because he stands to lose his position without the due process of the law.
He says his removal was highly politicised and the process overturned the popular will of the people as contained in Article 1(1) of the Constitution.
He claims that senators voted for his removal without confirming whether the impeachment motion was supported by evidence. He says senators voted for the charges levelled against him without any evaluation of the evidence placed before the Senate.
Another claim is that the Senate failed to confirm whether there was affirmation from the Members of the County Assembly (MCAs), verifiable signatures of a third of the MCAs who participated in the process and a verification form.
While accusing Senate of abdicating its duty, Mr Sonko claims the Senators also failed to confirm videos of the MCAs who voted virtually, list of those who voted and a copy of the Hansard proceedings showing how many voted, abstained and how many rejected the impeachment motion.
He also claims there was no public participation at the county assembly level and that the MCAs denied him the opportunity to defend himself during the proceedings.
In the court documents Mr Sonko attacks the Speaker of the Senate Ken Lusaka for blocking him from raising a preliminary objection against the impeachment proceedings.
Instead of being granted the opportunity to prosecute the preliminary objection as provided under the Senate Rules of Procedure, Mr Sonko says the Speaker decided of his own motion that the issues raised in the preliminary objection would be considered along with the matters raised in the impeachment motion.
However, the issues contained in the objection were never put to a vote. Mr Sonko alleges discrimination by the Senate since his accuser, the County Assembly, was allowed to introduce witnesses whose evidence was not before the County Assembly.
He also claimed that he was denied the right to file a supplementary response concerning the expanded extra documents adduced by the MCAs.
“At some point in the course of the proceedings the Senator for Kakamega Cleophas Malala stated that the Senate had already decided, and no further submissions were warranted as the same were a waste of time,” claims Mr Sonko.
He adds: “The remarks demonstrate a predetermined position of the Senate which was conducting a quasi-judicial function as opposed to a legislative function and the same pointed at bias on the part of the senators in the eyes of not only the Petitioner but also the members of the public.”
Mr Sonko also alleges that the Senate House hardly raised the quorum during the proceedings but at voting time it was a full house.
“The Senate abdicated its Constitutional responsibility of protecting the sanctity of the Constitution and pursued a partisan agenda to the prejudice of the Petitioner. It did not investigate the volumes of documents supplied to it,” reads the court papers.