• The law says where there is a vacancy in both the offices of the governor and his deputy, the speaker of the county assembly shall act as governor for 60 days.
• Sonko was impeached on Thursday after 88 MCAs supported his removal. One analyst says NMS boss Badi likely to be sworn in.
If the Senate upholds the impeachment of Nairobi Governor Mike Sonko, he could still run again in a by-election, lawyers indicate.
The law does not state whether an impeached governor can vie or will be barred from contesting if his county goes for a by-election to fill the vacancy.
This is the view of lawyer Evans Monari of Daly & Figgis Advocates.
“The law is silent about the election. The law doesn’t expressly say that once you are impeached you abstain from contesting,” he told the Star on Friday.
Monari said this is the case - he could run - unless otherwise pronounced by the court in the absence of a law that expressly prohibits Sonko to contest.
High Court advocate Demas Kiprono also said there was no particular statute that can bar Sonko from vying in a by-election.
Could the Independent Independent Electoral and Boundaries Commission bar Sonko from vying in a by-election?
Monari said only the sponsoring party can deny him a ticket on account of current [graft] allegations, however, he can still run as an independent candidate. Sonko denies the allegations.
“The IEBC cannot bar him from contesting due to his ongoing corruption case because the law presumes everyone innocent until proven guilty," he said.
“Perhaps the sponsoring political party denies him a ticket on account of allegations but there is room for anyone to run as an independent," Monari said.
Kiprono faulted Kenya's ethics provisions for failing to stop people with integrity issues from contesting an election.
“Broadly speaking the Leadership and Integrity Act and the IEBC should have been able to bar people with dignity issues from contesting,” he said.
Kiprono said before Sonko had been given a certificate of good conduct to run for Nairobi governor, he had previously been jailed.
He recommended that integrity and electoral issues be seriously reexamined during the Building Bridges Initiative - if leaders want to end corruption.
Sonko was impeached on Thursday after 88 MCAs voted for his removal. They cited gross violation of the Constitution and other laws, abuse of office, committing a crime under national and international laws and lacking the physical and mental capability to run the county government.
Sonko, however, had ferried 57 MCAs to Kwale and they alleged they had been impersonated and their votes cast by others to send Sonko home.
Article 182 of the Constitution states a Governor’s office may be be pronounced vacant if he dies, resigns in written communication to the speaker of the assembly or is removed from office under the Constitution.
If a vacancy occurs, the Deputy Governor assumes office for the remainder of the term of the county government.
However, since January 12, 2018, Sonko has been running the county as a one-man show after Ploycap Igathe resigned as deputy governor.
The law indicates where the offices of both governor and deputy governor are vacant, the speaker of the county assembly shall act as governor.
What follows next is a by-election.
“If a vacancy occurs in circumstances, an election to the office of the county governor shall be held within 60 days after the Speaker assumes the office of the governor,” the Constitution reads.
Holding a different opinion, political analyst Danstan Omari said Sonko's removal issues shifted away from the law to politics.
He said Sonko's political future as governor will not be based on law but on the Executive who appears to have sealed his exit.
“It’s no longer a question of what is in the statutes, but it’s the Executive who is determined that Sonko should be out. Whether he comes with a million court orders is academic or whether there will be a by-election is still academic,” Omari said.
It was an apparent reference to President Uhuru Kenyatta, the nation's Executive.
Citing the United States, Omari said the impeachment process is not a legal process, it's all about numbers.
Regardless of whether there were solid grounds to impeach US President Donald Trump, Republicans who dominate the Senate refused to uphold his impeachment by the House of Representatives.
“On Sonko’s matter, it is not a legal question but the political aspect that has been infiltrated by the denial that [there] exists law in this country. That is a very lethal combination,” Omari said.
He predicted Nairobi will not have a by-election because the state-backed Nairobi Metropolitan Services will take over until the 2022 General Elections.
“They will swear in [NMS director general] Major General Mohammed Badi. He will become the governor and people will be left battling with interpretations in court until 2022," Omari said.
This is the Uhuru’s, ODM chief Raila Odinga’s and Interior CS Fred Matiangi's government where they will use [all means possible] to do what he [Uhuru] wants. . We have no law with the Uhuru’s regime,” he added.
NMS was established in March 2020 after Sonko signed the deed of transfer, surrendering core county functions to the national Government.
Badi’s office has a tenure of 24 months, ending in March 2022, less than six months to the general elections.
(Edited by V. Graham)