Why there may be no by-election in Nairobi

A litany of court cases and behind-the-scenes manoeuvres by influential power players have thrown the Nairobi governor contest into disarray.

The likelihood of a by-election taking place seems to be fading and Nairobians might just be spared a gruelling political duel.

The February 18 by-election was suspended by the High Court on Monday—the first major hurdle—until a petition filed by impeached Governor Mike Sonko is determined.

However, the determination of two more cases in the coming weeks could completely scuttle the high stakes by-election.

The first is a surprise application to withdraw a case lodged against the vetting of Sonko’s deputy governor nominee Anne Kananu Mwenda.

Should the High Court allow the case to be withdrawn, Kananu will be hastily vetted by the county assembly and sworn in as the deputy governor.

She would then take over as the first woman governor of Nairobi.

Kananu, a criminology graduate, served as Disaster Management chief officer in Sonko's administration.

Sources told the Star that influential individuals in the establishment have drawn an elaborate plan to have Kananu take over and avert a divisive by-election.

Some city MCAs have confirmed that they were on standby to vet Kananu and pave her path to power.

“Unless the court decides otherwise, the committee will go ahead and vet her, proceed to report writing and present it to the assembly for the house to either reject or accept her as the deputy governor,” said a second-term MCA and a member of the county assembly Appointment committee.

The committee is chaired by the speaker, with the Majority leader as the vice-chairperson.

On Monday, petitioner Peter Odhiambo Agoro filed a notice to withdraw the case challenging the nomination of Kananu. Agoro had secured orders barring her vetting until his case is heard and determined.

He argued that Sonko had violated court orders by making the nomination since at the time, Anti-Corruption Court magistrate Douglas Ogoti had barred the governor from accessing office after he was charged for graft.

According to lawyer Danstan Omari, the two events—withdrawal of petition and suspension of by-election—are choreographed by the government to ensure no by-election takes place in Nairobi.

He said the government is determined to “avoid the Msambweni type of humiliation”.

The ODM candidate in the Msambweni by-election, who was packaged as the handshake candidate, lost to an independent candidate backed by Deputy President William Ruto.

Omari said the fact that Attorney General Kihara Kariuki has yet to appeal the suspension of the February 18 by-election and the IEBC agrees with the suspension, is telling.

“The IEBC and the protagonist entered consent to stop the by-election. Where on earth will the IEBC enter consent for a by-election to be stopped?” asked Omari.

“Where on earth does a court stop an election that has been slated at an ex parte stage? The AG has not appealed that decision, which is a serious affront on the government. The AG has kept quiet.”

Omari went on: “To avoid the embarrassment, a political argument has been done so that we have the nominee [Kananu] vetted, gazetted at midnight and sworn in the morning. You cannot remove her unless she is impeached, resigns or she dies."

According to the lawyer, Nairobi could have Kananu as a substantive Sonko replacement before the end of next week.

In a yet another intriguing case, a Nairobi voter moved to court to have former Deputy Governor Polycarp Igathe take over as governor.

Patrick Kiiri argues Igathe’s resignation was not formal and as such he legally remains deputy governor.

He says Igathe’s resignation on January 12, 2018, was never communicated to the Independent Electoral and Boundaries Commission as required by law.

He further argues that the electoral agency has no constitutional mandate to call a by-election to fill the vacancy when a deputy governor is already in place.

But some constitutional lawyers say it would be impossible to instal Kananu as governor.

Lawyer Bobby Mkangi told the Star the by-election is unstoppable as the law would only recognise Kakanu if she was a substantive deputy governor at the time of Sonko’s removal.

He said her nomination died on the day of Sonko’s impeachment.

“We should ask ourselves: at the time of his [Sonko’s] ouster was there a substantive deputy governor in place? The answer is 'No'. If a substantive DG and not a nominee were in place, then we would not have triggered the election route, he or she should have taken over,” Mkangi argued.

“We cannot retrospectively go back and try to effect events that we even don’t know how they would have ended up because there was a pending vetting.”

This is the same argument advanced by lawyer Kibe Mungai, who says the nomination of a deputy governor and the eventual takeover of the office is a process (see expert comment on page 5).

“Since the nomination is a process, the matter is finalised with the appointment of the nominee. This appointment would be done by the governor, in this case Sonko. In other words, the nomination process crystalises with the appointment,” he told the Star

The developments are unfolding at a time the IEBC has gazetted a record 16 interested aspirants eyeing the city’s top seat.

They include former Kiambu Governor Ferdinand Waititu who got the last laugh after attempts by the Ethics and Anti-Corruption Commission to lock him out of the race on account that he was impeached, failed.

Waititu, well known as Babayao, had earlier challenged a decision by the electoral commission barring him from running.

BBI secretariat co-chair Dennis Waweru, Agnes Kagure, Betty Adhiambo, Alex Kipchirchir and Habib Omar were cleared to participate in the Jubilee primaries.

Ogwang Raymond Ndungu, Kiigi Jasiel Njau, Kimore Evans Machoka, Lengala David William, Hassan Jimal Ibrahim, Dr Noah Winja Migudo, Otieno Aloys Lavern, Mukundi Mathenge, Munyanya Yassin, Olingo Timothy Ayieko and Njuru Phyllis Wangari have been gazetted as independent candidates.