• Lawyer Omari said the courts are likely to stop the vetting as many legal questions are surrounding the process.
•The Assembly Appointment committee on Monday said it will proceed with the vetting as there was no law hindering it from doing so.
Legal questions continue to arise as the County Assembly of Nairobi prepares to vet Deputy Governor nominee Anne Mwenda Kananu in two days.
According to Lawyer Danstan Omari, Kananu’s nomination by law can be considered a nullity after Mike Sonko was impeached as Nairobi Governor on December 17, 2020.
“Sonko was impeached last month and at that time by law any nomination that had not been sworn in by operation of the law Kananu became nullity,” he said on Tuesday.
In his view, Omari highlighted that the Jubilee Party is divided on its position of Nairobi Politics resulting in many court cases.
“ The reality is that two factions of Jubilee are fighting for Nairobi and one seems to be a threat while the other one is putting in efforts to ensure that there are no by-elections in Nairobi,” he noted.
On Sunday, Deputy President William Ruto warned the county assembly against vetting Kananu on Friday.
He said that would forestall a democratic by-election to fill the governor's slot, as provided by law.
The DP claimed people were planning to install a governor using the court and that Nairobi residents have a right to elect their own governor.
“We want to tell those who are roaming in court, we want to tell them that even if they choose their governor in court, the people of Nairobi can choose their own in a by-election,” Ruto said.
Despite being against the scheduled vetting, Omari questions which law Kananu will use to become the governor if she sails through the vetting process.
He argued the constitution only allows a substantive Deputy Governor to occupy the office of the Governor.
“The legal question is, if Kananu occupies the position of the DG how does she hover to be a substantive Governor yet she is being vetted to be a DG,” Omari added.
Article 182 of the Constitution highlights; if a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor.
“If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor,” it further reads.
Supporting his sentiments, former Nairobi Deputy Governor Jonathan Mueke questioned what law the DG nominee will use to ascend to governor since the office is already occupied by an acting governor.
“Under which law is the county assembly of Nairobi using to vet someone for deputy governor? Even if Anne Kananu is vetted and becomes DG; how will she ascend to Governor since the office is already occupied? He questioned.
County Assembly Speaker Benson Mutura was sworn in as Acting Governor on December 21, 2020, after Sonko’s ouster.
Poking holes, Mueke also raised concerns that the law does not highlight that an Acting Governor can hand over to a Deputy Governor who has been vetted by the county assembly.
“The law only states the DG can ascend into the Governor’s position only when the Governor’s seat vacates while there is a sitting Deputy Governor. This is not the case for Nairobi as by the time Sonko was impeached he didn’t have a deputy,” he added.
However, Omari said the courts are likely to stop the vetting as many legal questions are surrounding the process.
The Assembly Appointment committee on Monday said it will proceed with the vetting as there was no law hindering it from doing so.