BY SAM ALFAN.
Nairobi Governor Mike Sonko has told High court his arraignment and being charged before Milimani court did not create a vacancy in the office of the governor.
In a petition he has filed, Sonko said the arraignment did not warrant the magistrate to direct him to remove his personal items from his office as though he had ceased having the right to access the office.
Sonko says the decision by chief magistrate Douglas Ogoti is unconstitutional and in violation of his right to the presumption of innocence. He argued through lawyer Harrison Kinyanjui that the ruling amounts to a constructive removal from office.
Through lawyer Harrison Kinyanjui, the Governor said there is arising threat of imminent of his ouster, exposing him to the threat of impeachment by the Nairobi City County Assembly for prolonged absence from his official duties and the court should therefore intervene and stop this “constitutional hemorrhage”.
The county boss contends that he is entitled to due process of the law under Article 27(1) of the Constitution, and that any matter ought to be adjudicated in a lawful, fair, and just manner as enshrined in Article 50(1) of the Constitution, as read with Article 25(c) of the Constitution.
Sonko argued that the exercise of Juridical Authority under Article 159(2)(a) of the Constitution is to be embarked upon without using the criminal process to perpetuate or serve extraneous or political reasons.
He added that for the court to create and impose on him a non-existent bail term not within the contemplation of Section 62(6) of the Anti-Corruption and Economic Crimes Act, is a gross violation of the right conferred on the Petitioner under Article 50(1) of the Constitution.
The Governor wants the court to compel Director of Public Prosecution Noordin Haji to designate what aspect of the Nairobi City County constitutes the scene of crime in respect of the case he is facing.
Kinyanjui said it could never have been the purpose of Article 181 and 182 of the Constitution to afford the court an oblique, unilateral right to constructively oust Sonko office on the basis of an indictment based on mere suspicion of an alleged economic crime through criminal process at the nascent stage, with bland allegations against him contained in a charge sheet, which has not been subjected to the evidential rigours of a trial.
“This unconstitutional act on the part of the magistrate at the behest of the DPP, National Police Service and EACC constitutes an ouster of Article 25(c) of the Constitution yet the said right is non-derogable,” says Sonko.
He said Magistrate effectively converted his office as such magistrate into that of Parliament to legislate obliquely, which is a blatant violation and disregard of Article 94 of the Constitution.
“In so acting to unlawfully and unilaterally expand Constitutional grounds upon which a Governor such as the Petitioner can be removed from office, contrary to and in express violation of what is stipulated in Article 181 and 182 of the Constitution the 6th Respondent made an unlawful and unconstitutional decision ab initio, tainting paragraph 6 of his Ruling dated December 10th 2019 in the 2 cited Anti-Corruption cases”, says Sonko.
He said the Magistrate decision to order he be escorted to his office to remove his personal items was unlawful, without any legal backing and amounted to an order directing him to vacate his elected post.
“This is an unprecedented misuse of judicial power amounting to an unconstitutional usurpation of the electoral court’s powers outside the framework of Constitutionally-set electoral law,” says Sonko.
Governor Sonko is court to issue conservatory order suspending the enforcement of the bail terms, prohibiting him from accessing his office or compelling him to remove his personal items.
Sonko further wants a temporary injunction, barring the Nairobi City County Assembly Speaker from assuming, taking over, or otherwise occupying the office of the Governor.
“A temporary injunction do issue, barring the Nairobi City County Assembly Speaker from assuming, taking over, or otherwise occupying the office of the Nairobi City County Governor by alleged reason of the Petitioner being charged under Nairobi Anti-corruption Case No. 31 of 2019 and Nairobi Anti-corruption Case 32 of 2019, as no vacancy has Constitutionally arisen in the elected post of Nairobi City County Governor,” urged Governor Sonko.
