Supreme Court to hear Sonko's deputy case next month

The Supreme Court next month will look into the legality of the nomination of Ann Mwenda as Nairobi's deputy governor.

According to a press release by the Deputy Director of Public Affairs and Communication at the Judiciary, Catherine Wambui, a pre-trial will take place on February 6.

"Advocates for the Nairobi county assembly speaker Beatrice Elachi are set to appear before the Supreme Court deputy registrar on February 6, 2020, for pre-trial compliance," the statement read.

The statement, dated January 16, added that the court filing preliminaries have not been completed. "We would like to assure the country that once the matter is properly before the Supreme Court, the court will play its part and delivery the advisory opinion in a timeous manner, faithfully guided by the Constitution and the law."

A pretrial is a conference ordered by the court and held in the courtroom to facilitate a face-to-face discussion of the issues underlying a case. It seeks to assure that all parties are prepared to proceed to trial, if necessary, and to discuss alternate means of settling the dispute at an early stage.

On January 6, speaker Elachi, through a reference at the Supreme Court, sought to know whether Governor Mike Sonko's move to nominate a deputy was in accordance with the law given that he has been charged in court with the loss of Sh357 million and enjoined from accessing his City Hall office.

Mwenda is serving as the Disaster Management chief officer. The deputy governor seat has been vacant since January 31, 2018, when Polycarp Igathe resigned.

Director of Public Prosecutions Noordin Haji dismissed Mwenda's nomination, accusing Sonko of violating court orders. He argued that the nomination amounts to interference with the crime scene and prospective witnesses, and will ultimately compromise the integrity of the trial.

But Sonko, through lawyer Cecil Miller, said the Anti-Corruption Court did not remove him from office but only barred him from accessing his physical office and communicating with intended witnesses.

"The court did not bar him from exercising the constitutional and statutory functions of his office,” Miller said.

Apart from the Supreme Court, Elachi is also waiting for the Attorney General's advisory opinion. "There is a lacuna in the Constitution on what Nairobi is facing and that is why the advisory from the AG and the Supreme Court will give us the direction we need to take as an assembly," she stated.

IEBC GUIDELINES

IEBC guidelines require a governor to submit a deputy's name to the commission. The electoral agency then goes ahead and appoints a returning officer who shall vet the nominee as provided for in the Constitution and the law.

The guidelines were communicated to county governors on June 18, 2018, by IEBC chairman Wafula Chebukati. The IEBC considers a deputy governor to occupy a political seat, hence filling it should follow standard procedure. It says the nominee must meet the qualifications as stipulated in the Leadership and Integrity chapter of the Constitution. 

"It logically follows that such a nominee must satisfy the constitutional and statutory qualifications attendant to that office as contained in the Constitution and the Elections Act, 2011,” the guidelines say. 

The commission vets and clears a nominee and issues a certificate, a copy of which is forwarded to the governor. The governor then forwards the name to the county assembly for vetting, deliberation and possible approval. 

If approved, the speaker forwards the name to the commission in writing with approval recommendations. The commission then gazettes the appointment of the deputy governor. 

“The commission shall also notify the Chief Justice, who, by law, is expected to appoint via the Kenya Gazette the judge or chief magistrate before whom the deputy governor nominee may take his or her oath of office in accordance with the County Governments Act, 2012,” the document says.