BY SAM ALFAN.
The Supreme Court has clarified that an advisory opinion filed before it by the Speaker to the Nairobi County Assembly Beatrice Elachi did not a bar Governor Mike Sonko from appointing a deputy governor.
In a press statement to the media and a communication to the lawyers of Nairobi Governor,Joseph Kiarie the Deputy Registrar of the Supreme Court Daniel ole Keiwua has said the petition.
“The same does not act as a stay of any duties or obligations as sought for clarification. The matter will further come for mention on March ,2020 for further directions”, said deputy registrar.
“Therefore the reference filed in the Supreme Court of Kenya should not be visited upon by any party to act as a stay,” ole Keiwua said in the correspondence dated February 7, 2020 to Kiarie for Sonko.
Kiarie had written to the Registrar of the Supreme Court on February 3, 2020 seeking clarification as to whether the petition by the Speaker stopped or barred any office/commission/ authorities to perform its duties as stipulated by the law.
Supreme court Deputy Registrar ole Keiwua has further clarified that the court is yet to hear the petition and has not made any decision about the appointment of the Deputy Speaker Ann Kananu Mwenda.
The petition has since been listed for March 5, 2020 when the Registrar will give further directions on the matter.
In the petition, the speaker is seeking an advisory opinion from the Supreme Court regarding a lacuna in the law in the absence of both the governor and the deputy.
However, the situation in the office of the Nairobi Governor does not attain constitutional threshold to be vacuum.
According to Article 182 of the constitutional the office of the Governor can only be vacant if the governor resigns, in writing, addressed to the speaker of the county assembly, ceases to be eligible to be elected county governor under Article 180(2);(d) is convicted of an offence punishable by imprisonment for at least twelve months, is removed from office under this Constitution among others.
In a petition filed at the apex court by the assembly through advocate John Diro wants the court to give direction whether there is a vacuum in the office of the governor and whether Governor Sonko can appoint a deputy in the current circumstances.
This comes after the arraignment and indictment of Governor Sonko before the Anti-Corruption court last December.
The assembly also sought a Constitutional interpretation on whether the speaker of the assembly can assume the office as per the law with full powers vested of the governor in the absence of both the governor and the deputy.
Elachi also informed the court to render an opinion on what happens when the speaker declines to assume the office.
“The request is meant to seek your wise counsel on the grey areas of the law for the purpose of guiding the functioning of constitutional sphere of the devolved government, ” she said.
“Subsequently, the advisory opinion sought in this reference will help in establishing the jurisprudence and give clarity regarding the current unique situation facing the county of Nairobi….,” read in part, the application.
The application lists the county assembly speaker and the clerk as applicants and Nairobi County government, the attorney general and the chair of IEBC as intended interested parties.
Submitting their views, the county government led by senior counsel Prof Tom Ojienda and lawyer Harrisson Kinyanjui told the court that there is a lacuna in the manner in which the law is being interpreted in the current scenario of Nairobi County.
Prof Ojienda said Sonko “is still actively in office and the constitutionally elected Governor of Nairobi County”, however, the case by Elachi raises a very serious constitutional question “as to how the office of the governor of Nairobi County can be assumed in the absence of a sitting governor.”
“As far as we are concerned Sonko is still the Governor of Nairobi County and there is no vacancy which can be filled or assumed by the Speaker,” said Prof Ojienda.
He, nonetheless, called for the expeditious determination whether a Speaker can assume the office of the Governor in the absence of a deputy governor.
“The question for determination is how the office of the Governor Nairobi County can be assumed in the absence of a sitting governor, and whether the Speaker can assume the position of governor or whether a speaker of any other county can assume that office in the event there is no governor in office,” he said.
Prof Ojienda also said it should also be decided whether a Speaker can discharge the functions of two offices – that of the Governor and that of the Speaker simultaneously.
He said the ruling of High Court Judge Mumbi Ngugi has given certain directions which needs to be interpreted by the Supreme Court.
The lawyer said according to that decision of Justice Ngugi governors who have been charged over alleged graft should stay away from office but that “does not mean they have been removed from office constitutionally.”
The law professor said the question of being out office is very serious and must be thought through before a final decision is arrived at as one is assumed innocent until proven otherwise and “for the current question a supreme decision is required.”
Lawyers have differed with Justice Ngugi’s finding that a governor should not discharge their functions pending determination of the graft cases against them.
Kinyanjui told the court that there is a pending constitutional application in which Sonko is seeking a three judge bench to determine the question whether “a governor who is charged should be kept away from discharging official duties.”
Keiwua ordered all the parties to file written submissions in answer to the serious constitutional issues.