Kananu’s appointment a monumental fraud against Constitution

Many Kenyans, myself included, watched aghast at the pantomime that has played out purporting to culminate in the appointment of Anne Kananu as Deputy Governor of Nairobi.

I have nothing against Kananu, and good luck to her if she can become the governor of Nairobi, within the confines of the 2010 Constitution and the County Governments (Amendment) Act 2020.

This shameful farce would be laughable were it not for the seriousness of its consequences. Serious for the long-suffering voters and residents of Nairobi, catastrophic for the Constitution and the rule of law.

It is my submission that not only should the consequences of the farce be reversed and nullified, but also that the perpetrators should be identified and exposed. I further submit to Kenyans that if ever there was a time for vigilance in defence and protection of the Constitution (as we are all obliged under Article 3), that time is now.

If the shadowy rapists of the Constitution are allowed to get away with this audacious fraud, they will feel encouraged to do worse and the next time, the stage will probably not be a county, but the country.

First, Article 182 of the Constitution provides: "(4) If a vacancy occurs in the office of County Governor, and that of the deputy County Governor or if the deputy County Governor is unable to act, the speaker of the County Assembly shall act as County Governor; (5) 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."

Applying Article 182 in the present case, at the time Governor Mike Sonko was impeached, he had no deputy. That is a fact that cannot be contested. That he had nominated Kananu for such position is not helpful as she had neither been vetted nor appointed.

At the point of the impeachment, therefore, and there being no deputy, Article 182 kicked in. And quite correctly, in accordance with the Article, Speaker Benson Mutura was sworn in as acting governor. Again quite correctly, in accordance with the constitutional provisions, the IEBC commenced the process contemplated in Article 182 (5) and set a date for a by-election.

Up to that point, political attachments aside, the Constitution was well respected. Sadly however, shadowy merchants of impunity had other ideas. In complete disregard of the Constitution and the law, a process commenced, purporting to be based on the County Governments (Amendment) Act 2020.

The Act in Section 32D provides as follows: "Where a vacancy arises in the office of a deputy Governor as provided for in Section 32(c), the governor shall, within fourteen days, nominate the deputy governor, and with the approval of the County Assembly, appoint a deputy Governor."

One does not need to be a lawyer to appreciate that the two legal processes — Article 182 of the Constitution, and Section 32D of the County Governments (Amendment) Act 2020 — are mutually exclusive in their application.

If, as was the case here, in terms of Article 182, there is a vacancy in both the offices, then Section 32(d) of the Amendment Act cannot apply, for the simple and obvious reason that there is no governor in place to appoint the deputy as contemplated in Section 32(d).

There are three stages contemplated in an appointment under Section 32D: Nomination by the governor, vetting by the county assembly and appointment by the governor.

These three stages are sequential.

Accepting that prior to his impeachment, Governor Sonko had nominated Kananu (Stage 1) and that the nominee was vetted by the county assembly (Stage 2), the question arises, after the vetting and there being no governor at this stage, who appointed the Kananu post vetting to the Office of Deputy Governor?

This is a clear and fraudulent assault on the Constitution and the law. It is also offensive to basic common sense. On this occasion, the law and common sense are on the same page.

Those who designed and executed this plot to fraudulently purport to appoint a deputy governor have violated the Constitution and the law in the most audacious manner. Once again, I urge Nairobians and Kenyans at large appreciate that this is the thin end of the wedge of constitutional mutilation, and abandonment of the rule of law.

It bears repeating that over a period of many years, and with much sacrifice, Kenyans sought to define the society they work and live in, and in particular how they want to govern themselves. This they did in the 2010 Constitution.

Therein they restated the primacy of the rule of law. Among many moves to desecrate the 2010 Constitution and thwart the rule of law, the purported appointment of Kananu as deputy governor, in my view, ranks very high.

This travesty should and must be, condemned, resisted and reversed within the available legal processes. 

Charles Nyachae is the former chairman, Commission for the Implementation of the Constitution and is now a East African Court judge