• This week, Governor Sonko pulled an unexpected move by nominating a deputy governor after operating comfortably without one for close to two years.
• The question is: given Sonko’s bail terms, does he have the legal authority to appoint a deputy governor?
The only thing more dangerous than a question is the answer.
One of my favourite television series is The Bull, starring Michael Weatherly. The Boss, as he likes to be called, is a psychologist and trial science expert who heads a jury consulting firm. He combines his skills, human intuition and high-tech data to select the right jurors for his clients, help his clients’ lawyers decide which type of argument will best win over jurors, and how best to shape successful narratives down to the last detail.
His staff is comprised of a defence attorney who stages mock trials, a cutting-edge neurolinguistics expert, a former police detective, an investigator, a millennial hacker responsible for gathering cyber intelligence and a fashion-conscious stylist. Nothing is left to chance and every detail is planned and executed meticulously. Although it is a work of fiction, The Boss hardly ever loses a case, regardless of whether his clients are innocent or guilty.
Our own homegrown rendition of The Boss’s tactics seems to be embodied in the person of Nairobi Governor Mike Sonko. He has earned himself a couple of labels, including maverick. Undeniably, if vying for various political positions and clinching them against all odds is a measure of success, then the man has had a successful political career.
Like The Boss, he thrives in agility that defies the norm. And this week, to the surprise of most Kenyans, Governor Sonko pulled an unexpected move that caught both friend and foe off guard. He nominated a deputy governor after operating comfortably without one for close to two years since the sudden departure of his running mate Polygarp Igathe in January 2018.
And as is characteristic of us as Kenyans, we immediately asked the question rather than sought the answer. And the question that has drawn out various arguments and seen many keyboard and legal experts give their varied opinions is this: given Sonko’s bail terms, does he have the legal authority to appoint a deputy governor? [His bail terms forbid his stepping into his officer or performing a governor's functions.]
I submit that not only is this the wrong question, but it is also a completely impotent one because all it begets us is a binary answer. In its place, we should seek to perceive the intention behind this nomination and begin to follow the breadcrumbs to assess whether they will lead us to an answer(s) that could turn out to be more dangerous than the question we are posing.
Going by his latest tactic, it is evident that the nomination of the deputy governor was a gambit and not a random act. And so have been all his other actions. Let us unpack this slowly.
Like The Boss, Sonko has carefully selected his supporting cast that is comprised of legal experts who also double as senators. Of the various constitutional ways he can be dethroned as a governor, one of them is through impeachment by the county assembly, after which the matter is heard in the Senate where he can either be convicted or not. Two members of his legal team are senators, one of whom is the Majority leader in the Senate. Should this case ever find its way to the Senate, where will his lawyers' loyalties lie? With their client or with the evidence? This begs the question, was their selection a fluke or a calculated move?
For the two years he has operated without a deputy governor, he seemed to have been doing just fine, although he did attempt to nominate Miguna Miguna in 2018. But the speaker vetoed the name, arguing that he was not a Jubilee Party member. He has now nominated Ann Mwenda. It is not clear which political party she is affiliated to and whether the same reasons that disqualified Miguna would equally obtain. But more fundamentally, it is probable that the county assembly will not approve her nomination.
But I submit that this is not Sonko’s end game. I can bet that he would not lose a wink of sleep if Kananu failed to get the county assembly’s approval. His intention could be to demonstrate that he has unsuccessfully tried to nominate a deputy governor but his efforts have been frustrated by other arms of the county government. And if, God forbid, a disaster were to occur in Nairobi county that would require a supplementary budget to mitigate against it, only the governor could approve it. And without a deputy governor, would the court rescind or suspend its ruling that bars him from office? Begs another question, is the selection of his deputies arbitrary or intentional with a premeditated outcome?
In challenging this nomination, DPP Noordin Haji has argued that the court’s ruling was not to simply bar Sonko from the physical access of his office but that it extended to the discharge of his official duties.
In his interpretation, Sonko has thus violated his bail terms. Sonko’s lawyers, however, advance a contrary assertion that their client can still exercise his powers as long as he does not step into the physical space of his official office. In other words, they have told us that if Muhammad cannot go to the mountain, then the mountain will come to Muhammad. Begs yet another question, is this an inadvertent or deliberate misinterpretation of the court’s ruling?
Unlike other governors who cannot fire their deputy governors because they vied on one ticket, the law is silent on whether Sonko can fire his nominee once approved. Within this legal lacuna, it would be expected that if Mwenda would like to retain her job as the first female deputy governor in the country, she would remain beholden to Sonko and this would likely compromise her ability to independently serve the county’s taxpayers. Begs the final question, is this nomination a misfortune or is it purposefully designed as an extension of Sonko’s rule through proxy?
As in The Boss, none of these courses of actions by Sonko are random by any stretch of the imagination. They are conscientiously computed to arrive at a preconceived favourable outcome that ensures he does not lose his position as Nairobi governor. And who can blame him? Just as any other Kenyan politician, Sonko is fighting for his political survival.
In philosophy-speak, he is practicing consequentialism. This is an ethical theory that judges whether or not something is right by what its consequences are. For example, all of us would agree that lying is wrong. But if telling a lie would help save a person’s life, then consequentialism says that lying is the right thing to do.
If the above are the answers, then it is axiomatic that they are more dangerous than the question we have posed.
We have labelled this a war on corruption. Every war requires a Situation Room to strategise on a victory. It is not unreasonable to assume that in Sonko’s Situation Room, like The Boss, he has invested in a wide range of expertise, including fashionista stylists to appeal to a variety of audiences.
Therefore, my final unsolicited advice is to the DPP: History is always written by the victor, not the vanquished. Sonko, like The Boss, sees war in 3D. Hence, if you desire to win, re-examine who is in your Situation Room? If you only have lawyers, you will continue only selling the sizzle and not the steak.
So, kindly think beyond your legal landscape, and negotiate for some of the BBI —
Sh10 billion to diversify your strategy team, including some political advisers and stylists.
People always call it luck when you’ve acted more sensibly than they have - Anne Tyler