• Mulwa avers that the memo was not subjected to the MCAs and the speaker abrogated the powers of the High Court judge while ruling on the matter.
• Elachi has faithfully upheld this doctrine while discharging her duties, including in this case.
My attention was drawn to a commentary by Ben Mulwa in the Star on Monday, April 20 titled ‘Elachi wrong to reject Sonko Memo’.
In his arguments, Mulwa claims Nairobi speaker Beatrice Elachi did not follow the law and procedure when presiding over the memorandum from Governor Mike Sonko on his refusal to assent the Nairobi City County Supplementary Appropriations Bill, 2020.
In a complete show of ignorance of the assembly's Standing Orders, practices and precedents, Mulwa avers that the memo was not subjected to the MCAs and the speaker abrogated the powers of the High Court judge while ruling on the matter.
Mulwa also alleges that Elachi had initially directed the Finance committee to rewrite a supplementary budget that had been submitted by the county executive.
This is a narrative he has been propagating in his other media briefings. It is not clear whether he is acting on Sonko's or not since he was publicly dismissed as his personal assistant a while ago.
Nevertheless, these claims cannot be left unanswered because they question the role of the Speaker and portrays her as partisan and with vested interests.
His sentiments have also been raised by senators Mutula Kilonzo Jnr and Ledama Olekina in their commentary on how the assembly prosecuted the memorandum.
First, the Office of County Speaker is privileged, in that members entrust the holder with the power to preside over the assembly with the end objective being to ensure the transaction of business within the limits of the Standing Orders, Statutes, and precedents.
The speaker is, therefore, guided by the law and the rules of the assembly, and blind to external influence. Elachi has faithfully upheld this doctrine while discharging her duties, including in this case. It is laughable to allege she can direct a committee to rewrite a budget.
Secondly, on consideration of the memo, Standing Order 43 (2) provides: "If a message is received from the Governor or the Senator of the County, at a time when the County Assembly is not in session, the Speaker shall forthwith cause the message to be transmitted to every Member and shall report the message to the County Assembly on the day the County Assembly next sits."
In fulfilling the requirements of this order, all members were circulated with the memo on April 16, having been received by the speaker on April 15 since it was received while the assembly was out of session due to coronavirus.
Consequently, considering the timelines set by the law on consideration of the memo, Majority leader Charles Thuo requested the speaker to convene a special sitting on April 17 to consider the memo.
The sitting was consequently gazetted. By 12noon, Friday, the speaker had received several objections from members, both from Jubilee Party and NASA. There are records to this effect.
These objections partly informed on how the speaker guided the House. This is a known fact that the speaker, before making a determination, may be guided by submissions by members. Indeed, these objections need not be raised on the floor as alleged by Mulwa. In fact, during this Covid-19 situation, the assembly has developed protocols on how to conduct business, with the use of written and electronic submissions being encouraged.
Thirdly, Elachi made her ruling based on the provisions of Standing Order 146(4) which provides that; "Where the Governor’s Memorandum on any Bill raises a question of Constitutionality of the Bill or provisions of the Bill, the Speaker shall notwithstanding the provisions of paragraph (2) (a) give a determination on the Constitutionality of such a question’’.
Paragraph 2 of Standing Order 146 requires that the memorandum be subjected to the relevant committee and subsequently to the Committee of the Whole Assembly, if it does not raise constitutional issues.
For the interest of the public who may not have had the chance to follow the proceedings, the Speaker observed as follows: "Having reviewed the Memorandum by the Governor, I have determined that the said Memorandum entirely raises questions of Constitutional and Legal interpretations that require my determination’’.
This is a practice that has been used severally, including when former speaker Alex Ole Magelo made a ruling on Governor Evans Kidero’s memo on the Nairobi City Office of the County Attorney Bill.
ASSEMBLY DID NOT BREACH THE CONSTITUTION
In the current circumstance, the issues determined by the speaker include Transfer of Functions as provided for under Article 187 of the Constitution. As such, the speaker found the assembly did not breach the Constitution as averred by Sonko. Instead, it acted in support of the governor’s actions to transfer key county functions to the national government.
As such, the speaker set-aside the entire memorandum and referred back the Bill to the governor for assent as it was passed on April 2. That is the procedure that Mulwa and other persons questioning the process need to understand.
As things stand, at the expiration of seven days (from the date when the Governor received the communication from the assembly) — whether the Governor assents to the Bill or not — it shall become law and only the courts can overturn that. This is where Mulwa should channel his energies.
It should be noted that under the current dispensation, the speaker has the power to publish laws passed by the assembly as long as the prescribed period lapses.
Mulwa needs to be reminded that the speaker's ruling binds all members and becomes the decision of the assembly. On this matter, therefore, the ruling is the decision of the assembly as far as the memo is concerned.
Imwatok is Nairobi Assembly Minority Whip