- According to the County Government Act, the first County Assembly session should not be more than 30 days after the Assembly is fully constituted.
- However, as it is right now, Mombasa County does not have a substantive governor because the incumbent Hassan Joho has already served his two five-year constitutional terms in office.
Image: FILE
The Mombasa County Executive and the County Assembly have written to the Attorney General seeking interpretation of the law over the current stalemate in the region.
This follows the Independent Electoral and Boundaries Commission decision to suspend the governor elections in Mombasa and Kakamega indefinitely.
Mombasa County Secretary Joab Tumbo, who is the chairperson of the Assumption of Office Committee, and the County Assembly Clerk Salim Juma, said the newly elected MCAs cannot be sworn in because the governor position is yet to be filled.
According to the County Government Act, the first County Assembly session should not be more than 30 days after the Assembly is fully constituted.
The County Government Act Section 7 (B) states that “Whenever a new county assembly is elected, the governor by notice in the gazette shall announce the place of sitting in the county as set out in the third schedule, the date of the first sitting of the new county assembly which shall not be more than 30 days from the date which the county assembly shall be fully constituted as provided under section 7 (A) of the Act.
The MCAs both elected and nominated should be gazetted by the IEBC within 21 days after the election.
However, as it is right now, Mombasa county does not have a substantive governor because the incumbent Hassan Joho has already served his two five-year constitutional terms in office.
In an interview with the Star, Tumbo and Juma said the delay in the swearing of the MCAs in Mombasa and Kakamega counties was unprecedented because the Constitution of Kenyan 2010 did not envisage the current situation.
“Mombasa is in a state of a quagmire, it is something that will need the interpretation of the office of the Attorney General. We have already written to the AG and have reached out to the Council of Governors and we are awaiting their responses,” Tumbo said.
According to Tumbo, the current situation is causing a lot of unnecessary tension and anxiety, threatening service delivery in the county.
Tumbo, who chairs the transition committee, said they expect Mombasa to lag behind because the governor and the MCAs will be sworn in late if the governor elections are not done as soon as possible.
“IEBC, which is an institution funded by the taxpayers, must come out clear on what is happening. The absence of communication leaves the public with a lot of speculation,” he said.
The Assumption of Office Committee, which draws its membership from the County Government, the National Government Administration was formed 30 days before the election.
Tumbo said they have been meeting regularly to ensure a smooth transition, but the pronouncement by the IEBC has prolonged the transition process.
“We are not stopping because of what is happening, we are simply waiting for the elections to happen so that we can usher in the new regime. The shorter the transition, the better for service delivery,” he said.
According to the constitution's Article 182 (6), the person who assumes the office of county governor under this Article shall unless otherwise removed from office under the constitution, hold office until the newly elected county governor assumes office following elections held under Article 181.
Therefore, Juma said, Joho is still Mombasa Governor until he hands over to the next governor. However, currently, he (Joho) cannot gazette or call for the first session of the newly elected MCAs.
This happens after the governor has been sworn in office and the MCAs, both elected and nominated are dully gazetted by the IEBC.
“We need to get a new governor first because it is the governor who gazettes and publicises the first sitting of the new county assembly," he said.
Juma said after the first County Assembly session has been gazetted, the County Assembly Clerk proceeds to advertise for the position of the Speaker and Deputy Speaker.
The advertisement should be done at least 14 days before the sitting.
Currently, there is intense lobbying witnessed throughout the country for the position of the Speakers for the 47 County Assemblies.
“If the elections in Mombasa went on as planned on August 9, then the swearing-in of the MCAs would have taken place around the second week of September, after the governor has been sworn in on August 25,” Juma said.
According to Juma, the first order of the day for the new County Assembly is the election of the Speaker and Deputy Speaker, who are then sworn in by the Clerk.
After the Speaker assumes the position, he or she moves in to swear in all the elected and nominated MCAs in order of precedence or seniority.
“The election of the speaker comes first before swearing in of the MCAs. I am the one who swears in the speaker after presiding over his or her election since I am the returning officer in charge. Thereafter the speaker assumes office to swear in the members in my presence,” Juma said.
The date for swearing in of the new assembly as per County Government Act Section 7(B) shall not be more than 30 days from which the Assembly is fully constituted.
“We are seeking legal opinion because it is not clear what will happen after the 30 days elapse, so far the situation has left Mombasa and Kakamega in quagmire. That is why we have written to the Attorney General for clarity,” he said.
In a bid to resolve the stalemate in Mombasa, IEBC has summoned all the governor candidates for a meeting at Bomas of Kenya in Nairobi on Monday.
However, ODM governor candidate Abdulswamad Nassir, who has already sued IEBC for postponing the Mombasa election twice, has threatened not to attend the meeting.
On Saturday, during a press conference at SwahiliPot in Mombasa, Nassir said the letter they received has been signed by IEBC Mombasa County Returning Officer Swalha Yusuf.
He said his running mate Francis Thoya will attend the Nairobi meeting.
"I have received a letter from the commission signed by Mombasa County Returning Officer Swalha Yusuf inviting me for the meeting. I have no interest in the meeting, that's why I am sending my DG. My position on the matter remains that the elections need to take place on Tuesday as stipulated,” he said.
In the case against IEBC, which was filed on Thursday by three Mombasa residents; Thani Mohammed Mwamlavya, Moses Aran Oindo, and Kelvin Nzuki Muthini on behalf of Nassir and ODM, the court said it will be heard Monday from noon.
In this case, they have listed IEBC, Wafula Chebukati, the Ministry of Interior and the Attorney General as first, second, third, and fourth respondents respectively.
"Orders have already been granted that the commission files its response on Monday by 9am. We expect the hearing to be at 12 noon and await the ruling the same day," Nassir said.
Image: FILE