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Reprieve for Sonko as court suspends Nairobi by-election

The High Court has suspended a Gazette notice calling for the Nairobi by-election following a case by impeached Governor Mike Sonko.

In a ruling on Monday, Justice Anthony Mrima temporarily stopped the mini poll slated for next month on the basis of Sonko’s petition challenging the process that led to his ouster late last year.

Justice Mrima said the order will remain pending determination of Sonko’s case, in which he challenges the ouster process and seeks his reinstatement as the county boss.

According to the order, effects of the Gazette notice, such as clearance of candidates for the by-election, procurement of poll materials and training of election officers by the Independent Electoral and Boundaries Commission (IEBC) stand suspended.

“Academic exercise”

The judge made the decision while giving directions on the hearing of Sonko’s case on January 14.

Through lawyers Evans Ondieki,  Wilfred Nyamu and Harrison Kinyanjui, the impeached governor told the court that his case is likely to be rendered an academic exercise if the IEBC continues with its prepations for the mini-polls.

“The case deals with the petitioner’s fundamental rights, violation of the constitution and law and fair administrative justice,” said Mr Nyamu, the  lead counsel.

He told the court that his client is questioning the swearing-in of Speaker Benson Mutura as acting governor on December 20, 2020, the argument being that it was done in violation of the Assumption of Office of the Governor Act.

“The Act says the swearing-in should happen after 10 days but in this case it was done within three days. There was abdication of the duty to abide by the rule of law. After the swearing-in, the acting governor signed into law the Finance Appropriation Bill on disbursement of funds. Such issues may be rendered nugatory,” Mr Nyamu told the court.

Status quo

The county assembly and the Committee for Assumption of the Office of the Nairobi County Governor were not opposed to Sonko’s request as long as the status quo – that there is an acting governor – is maintained.

“If later the court finds the acting governor is not properly serving, appropriate orders can ensue,” said lawyer Ndegwa Njiru for the committee.

Mr Ndegwa added that the court has a duty to ask whether Sonko was removed from office constitutionaly but said the determination should not be done haphazardly due to timelines involved in filling a vacancy in the office of the governor.

The court has powers to suspend any constitutional issue, he also said.

“The matter ought not to be rushed. It needs to be given quality time by the court and the parties,” said Mr Njiru.

Virtual voting

Sonko filed the petition last year but it was overtaken by events, forcing him to amend the case.

He argued that it raises pertinent constitutional questions, which might be rendered useless it the by-election takes place as scheduled.

He said the process that led to his impeachment by the county assembly, starting on December 3, was conducted in utter breach and/or disregard of the democratic principles and separation of  powers.

Sonko also said attendance by MCAs was both physical and virtual whereas the law and standing orders do not contemplate the simultaneous application of both methods of voting.

He further said some of the MCAs were in Kilifi County and it is not envisaged that they could vote either physically or virtually contrary to the provisions of the standing orders.

“The MCAs who were outside Nairobi have alleged that their accounts were hacked and/or corrupted and strangers purported to Log In and vote on their behalf,” he said.

He maintained that neither the law nor the standing orders provide for virtual voting and/or attendance.

System issues

Sonko adds that the Zoom system used on voting day was logged into more than once, at the same time, but through different accounts.

“There was double, and in some cases, quadruple cases of logging into peoples’ accounts, which raises serious questions about the integrity of the process,” he said.

He also said that Speaker Benson Mutura, now the acting Governor, declared that he was impeached by 88 MCAs but it is not possible to verify the lawmakers actually voted and how they did so.

He noted that the assembly has 122 MCAs yet the records show 146 people voted, which he said means 24 strangers illegally participated in the process, raising more questions.

The ousted governor further said  that in total disregard of express provisions of the Assumption of Office of the Governor Act, Mr Mutura’s swearing-in was moved to KICC’s Comesa Grounds and not City Hall.

He also said he was not accorded time to defend himself.