Experts: Law and not politics should take precedence in Sonko’s impeachment

The impeachment of Nairobi Governor Mike Sonko and the subsequent process to replace him with Anne Kananu Mwendwa as the substantive governor has continued to divide legal minds in the country.

Lawyer Charles Kanjama on Friday said that the leadership wrangles in the city have been overshadowed by the politics of the day rather than the rule of law. While speaking to an evening television show,Kanjama said that the political decisions, rather than legal solutions be done may end up setting a bad precedence incase of a similar case in the future.

He said that is upon the courts to be steadfast and ensure that the right decisions are made to enure justice is served.

“Everything that we are seeing seems to be geared towards having a temporary political solution but may end setting a bad precedence,” Kanjama said.

His remarks come three days after Las Society of Kenya President Nelson Havi said that Sonko was impeached because of refusing to sign the Sh37billion for the Nairobi Metropolitan Service.

Sonko has challenged the impeachment in court and the case is set to be determined on January 28,2021.He argues that the impeachment motion did not follow the right procedure as required by law.

When he appeared before the senate, Sonko put up a strong case through his legal team where he challenged the legality of the motion in totality. He argued that the assembly had breached the standing order No.98 (3) (c) of the senate standing orders barring debate on sub judice matters. Many observers seem to agree that indeed the governor was impeached because of his refusal to give funds to NMS. However, 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 in his ruling 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 added weight to Sonko’s repeated claims that there was 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. 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 seemed to confirm Sonko’s argument that there was no legal framework of funding the NMS.

Lawyer Faith Lukosi says that Sonko was punished for mistakes that the treasury allowed to exist for a long time. “The truth is that there was no legal framework through which the county could fund NMS and the governor had every legal backing not to append his signature to the transfer of funds,” Faith said.

LSK President Nelson Havi on Tuesday revealed that immediately after Sonko was impeached, Speaker Benson Mutura who took over as acting governor moved colossal amounts of money from the county coffers to the NMS, despite a court order suspending the appropriation act.

‘This should be an issue of great concern to Kenyans because NMS itself is an entity whose legal credibility cannot be found. Why is it given monies that are intended to be used by officials of the county government that are duly elected? Therein lies the problem,’ Havi noted.

Havi said that Sonko was systematically impeached so as to ensure that the county funds are accessed easily and given to NMS, despite the fact that the basis of impeaching him lacked merit.