Why senate could focus on the legality of Sonko’s impeachment

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The legality and process of impeaching Nairobi Governor Mike Sonko is what could play out in the senate when the governor files his defense before the 67 senators.

The governor was impeached over various accusations like gross violation of the Constitution and other laws, abuse of office and commission of crimes under the national laws.

However, multiple sources indicate that the biggest focus will be on the process of impeaching the governor, with some senators having already poked holes in the manner in which the Nairobi County Assembly conducted the process.

Some 40 MCAs are understood to have signed affidavits denouncing their signatures to the motion, approximately another 50 MCAs claim not to have participated in the voting process with 20 claiming that their emails and login details to the online voting platform were tampered with.

Nominated MCA Silvia Museiya is on record dismissing reports that 86 out of the 122 MCAs signed the impeachment motion against Sonko. She said that only a few signatures were collected through coercion and intimidation

 “We are here to make it clear that the signatures that they purported to have collected were not true because they were collected from a Kamkunji meeting held two weeks ago,” she said. 

The proponents of the motion have however claimed that the signatures were legit and that the MCAs were aware of what they were signing.

The issue could be subject to interrogation at the senate if indeed the MCAs who denounced their signatures are still willing to denounce them. In this case, the governor will have to prove to the senate in his defense that indeed the MCAs never appended their signatures.

Another legal process that could play out is the voting process where the MCAs cast their ballot through virtual voting. Some senators while seeking guidance from speaker Ken Lusaka said that “they would not want a repeat of what happened at the Nairobi County Assembly”.

On the material day of impeachment, Sonko paraded some 57 MCAs in Kwale declaring that they were all solidly behind him. His Director of Communication Elkana Jacobs claimed that 20 MCAs had difficulties accessing their accounts and were consequently not able to cast their ballot.

While the speaker of the Nairobi County Assembly Benson Mutura said that he was satisfied with the process, the governor is still at liberty to call for verification on how the voting occurred on the assembly’s online system. This will help verify who logged in, who voted and how they voted.

The third legal avenue the governor and the senate is likely to pursue is the legality of the impeachment motion in its totality, after his lawyer Harrison Kinyanjui said that by removing him from office, the assembly had breached the standing order No.98 (3) (c) of the senate standing orders barring debate on sub judice matters.

This is based on a purported High Court’s injunction order by the Employment and Labor Relation Court in petition No 35 of 2020 stopping unlawful process of impeachment governor Sonko.

The assembly initially mounted  an impeachment motion against the governor on  February 20th,2020, through Makongeni ward MCA Peter Imwatok.The governor moved with speed on February 27th 2020 to invoke Judicial intervention at the Nairobi’s  Employment and Labor Relations Court for interim relief.

“In protection and defense of the Governor’s rights,Hon,Juctice Byrum Ongaya of the ELRC Court stopped the impeachment and that has never been appealed against, nor has it been set aside to date,” Kinyanjui said

Observers opine that the biggest reason the governor was impeached is because of his refusal to give funds to that Nairobi Metropolitan Service. There was a new twist on the issue when the High Court stopped the Treasury from releasing funds to the Nairobi Metropolitan Services (NMS) over the legality of functions transferred to the entity and the manner in which the budget was passed.

Justice Anthony Mrima on Monday barred the Treasury and the Controller of Budget from facilitating the transfer of Sh27.1 billion to NMS, whose projects have been derailed by the budget spat.

This adds weight to Sonko’s repeated claims that there is no legal framework through which the NMS can be funded. He can argue this case well at the senate through his lawyers.

Interestingly, the judge directed Attorney-General Paul Kihara or his representative to convene a meeting including NMS, MCAs, the county government and Treasury officials within seven days to break the impasse.

Court also directed all the matters dealing with the legality of NMS and the Deed of Transfer be consolidated to be heard together.

Waithaka MCA Anthony Kiragu has said that it will be wrong for the governor to impeached based on issues that still need interpretation from the courts. “The courts have also realized that there is a problem and that is why they are also trying to push for consultations and not removing Sonko from office,” he said.

It is only on November 30, 2020 that treasury CS Ukur Yatani revealed that his ministry had developed the required legal framework through which the NMS can be funded. In a letter dated November 30, Yatani directed Governor Sonko to release funds to NMS.

Yatani’s letter indeed cements Sonko’s argument that there was no legal framework of funding the NMS.

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