“A drowning man will clutch at a straw” – Thomas More
By Newton Arori
On July 15, the Supreme Court upheld former Nairobi Governor Mike Sonko’s impeachment by the Nairobi County Assembly. The apex court’s decision effectively ends Sonko’s political career – the Independent Electoral and Boundaries Commission (IEBC) subsequently revoked its decision to clear Sonko to run for the Mombasa Governor’s seat. In fact, Sonko may never hold any other state or public office based on the prevailing interpretation of Chapter 6 of the Constitution on integrity and leadership.
Sonko’s woes began in 2020 when the Member of County assembly (MCA) for Embakasi ward, Michael Ogada, brought a motion for his impeachment to the Assembly. Article 181 of the Constitution provides that a Governor may be removed from office if they have grossly violated the Supreme Law, where there are reasons to believe that he/she has committed a crime under national or international law, or for gross misconduct. While any of those grounds would have sufficed, Sonko was accused of all three.
Under the gross misconduct category alone, there were 12 charges against him, ranging from his perpetual absence from work, to using public funds to facilitate his daughter’s international travels. But perhaps the most damning allegation against him (for which there was recorded proof) was his admission that he was he was drunk and not in the right frame of mind when he signed a deed of transferring County Government functions to Nairobi Metropolitan Services (NMS). The Governor had admitted that he was intoxicated by stating “Hawa watu wa State House waliniconfuse na pombe kwanza by the time I was meeting the President for signing, I was seeing zigzag.”
There was sufficient evidence to support the numerous other allegations against him, as well. A former County Executive Committee (CEC) member, for example, testified that she had been unable to work with Sonko due to his erratic behaviour. Little wonder then, that there was an abnormally high turnover with his staff. In a in a span of 40 months, the finance docket had been served by ten CECs and eight Chief Officers.
By the time Sonko’s case reached the Senate, his goose was cooked. Political meddling in the proceedings might have saved him, but his innocence was a forgone conclusion. In the end, the house voted to uphold his impeachment.
Dead on arrival
Sonko went to the High Court knowing his case was weak and resolved to deploy an old litigation strategy: shotgunning. He filed a lengthy, incoherent petition challenging his impeachment on several unfounded and petty grounds, going so far as questioning the Members of County Assembly’s decision to vote on his impeachment motion virtually rather than physically during the COVID 19 pandemic, and his being served with the Notice of Impeachment through the County Attorney instead of personally.
A three-judge bench unanimously upheld his removal from office, prompting an appeal to the Court of Appeal, which upheld the High court decision. His subsequent appeal and the Supreme Court’s decision, effectively sealed his fate.
Before then, with the election fast approaching, it seemed Sonko might benefit from his pending appeal. On July 13, the High Court in Mombasa directed the IEBC (which had blacklisted him) to clear Sonko to run, for the reasons that he had not exhausted the appeal process. The former Governor’s camp erupted in jubilation. Leading dailies ran feature stories on ‘Sonko’s comeback’. This celebration would be short lived.
Two days later, the Supreme Court upheld the Court of Appeal and High Court decisions on Sonko’s impeachment. Commendably, Kenya’s apex Court delivered its decision urgently to enable the IEBC decide on Sonko’s candidature.
“…it is not lost on us that, given the fact the general elections are due to be held in the next 24 days, the determination of this appeal will have a direct bearing on the preparations being undertaken by (the IEBC), especially in respect of the Appellant who has declared his intention to contest in elective seat. The appeal, for these reasons is, therefore a matter of urgency. In those circumstances, we considered it paramount to deliver this judgement in its shortened version, to be followed, on a date to be notified, by detailed reasons…’, the judges said.
The jurisprudential underpinning of the Court’s decision will become clearer once the full judgement is released, but Sonko’s case at the Court evidently was even weaker than it was in the two lower courts. The judges found that they had no jurisdiction to entertain it. This is because appeals from the Court of Appeal to the Supreme Court are not automatic. The party wishing to appeal must show that the issues being raised are either questions of public importance, or involve Constitutional interpretation and application. Sonko, according to the Court, failed to do this.
The judges cautioned: “It can never be the role of the court to wander around in the maze of pleadings and averments to assume jurisdiction by way of elimination.”
Enter the East African Court of Justice.
Desperate to extend his ‘candidate with pending appeal’ status, Sonko has now moved to the regional Court. One wonders how he has framed his case if the Supreme Court is yet to render a detailed judgement. His chances of success before the EACJ, as regards his candidature, are virtually zero for one main reason: jurisdiction.
Contrary to what Sonko and his lawyers would have us believe, the case before the East African Court of Justice (EACJ), should it be accepted, is technically not an appeal against the Supreme Court’s decision. The regional Court lacks the mandate to revise, review or quash a decision of a partner State’s Court. Article 23 of the Treaty for the Establishment of the East African Community, defines the EACJ’s role thus: ‘The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.’
A question of jurisdiction
Sonko will essentially be complaining before the EACJ about an alleged violation of a principle in the Treaty (the rule of law, for example) by a partner state (Kenya), through one of its organs (the Kenyan Judiciary). There is precedent for this in the case of Martha Wangari Karua v The Attorney General of the Republic of Kenya & 2 Others.
In the case of The East African Civil Society Organisation Forum (EACSOF) vs. The Attorney General of the Republic of Burundi, the EACJ said of its own jurisdiction: ‘The (case) before the trial court was not a further appeal from the decision of the Constitutional Court of Burundi. It was a case on the Republic of Burundi’s international responsibility under international law and the EAC Treaty attributable to it by reason of an action of one of its organs namely the Constitutional Court of Burundi.’
The IEBC’s policy of barring impeached persons from running for public office is founded in Article 75(3) of the Constitution, which locks state office doors to ‘persons impeached or otherwise removed from office’ for contravening integrity clauses. There is a debate around the fairness of using impeachment as an integrity test.
It has been argued that since the County Assemblies and Parliament are political bodies, they can be improperly used to frustrate politicians not in good books with the ruling party. Consider Sonko’s case. When he was a diehard Jubilee fanatic, the first attempt to impeach him failed. Once he ran afoul of the regime, however, the process was a breeze. On the other hand, Jubilee legislators were mobilised to save Kirinyaga Governor Ann Waiguru at the Senate after she was impeached by her County Assembly.
Ultimately, going by a recent ruling by the High Court, the decision on whether or not to clear Sonko is the IEBC’s to make. It would appear that the electoral body has already made up its mind (
—Writer is an Advocate of the High Court of Kenya
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