Nairobi Governor Mike Sonko has nominated Ms Anne Kananu Mwenda as his deputy and forwarded the name to County Assembly Speaker Beatrice Elachi for consideration.
Ms Mwenda is the current Chief Officer in charge of Disaster Management and Coordination at City Hall.
It’s not clear whether Mr Sonko can nominate his deputy since he is barred by court from performing his duties over abuse of office charges.
If approved by the assembly, Ms Mwenda will replace Mr Polycarp Igathe, who resigned on January 12, 2018, six months after the August 8, 2017 General Election, citing lack of trust from his boss. The nomination has drawn mixed legal opinions.
Dr Mutakha Kangu, the former chairman of the Task Force on Devolved Government, said that Governor Sonko cannot legally perform any duty, including nominating his deputy.
However, Makueni Senator Mutula Kilonzo Junior backed Mr Sonko, saying he could discharge his duties as long as he doesn’t step in his office as directed by the court.
Dr Kangu said the decision could be easily challenged in court based on the three-judge bench Court of Appeal ruling, which upheld the decision of High Court Judge Mumbi Ngugi that Samburu Governor Moses Lenolkulal be barred from office, pending the hearing and determination of his abuse of office charges.
“He is facing charges in a court of law meaning that he cannot perform the functions of his office. Nominating a deputy is one of the functions of a governor. He is trying to wriggle out of the mess he created at City Hall but it won’t work,” Dr Kangu said.
Director of Public Prosecutions Noordin Haji on Monday insisted that the governor is in contravention of his bail terms and that the nomination is null and void.
But Mr Sonko’s lawyer, Senate Majority Leader Kipchumba Murkomen, said the governor had not done anything wrong.
“Going by our earlier interpretation of the Court of Appeal decision, Governor Sonko has not violated his bail terms by appointing a Deputy Governor. In any case, there is no connection between the appointment and protection of evidence relating to DPP’s case,” Mr Murkomen said.
Justice Ngugi’s precedence-setting ruling was also used against Kiambu Governor Ferdinand Waititu over abuse of office charges.
On December 20, 2019, Appellate Court Judges DK Musinga, Gatembu Kairu and Agnes Murgor ruled that governors with corruption cases pending in court can only access their offices after they have been cleared.
However, Mr Kilonzo Jnr insists the governors were only barred from their physical offices but can chair meetings of their County Executive Committee members elsewhere and issue executive orders.
“The reason they were barred is so as not to interfere with documentation and witnesses who may be in that office. Governor Sonko is at liberty to nominate his deputy,” said Mr Kilonzo Jnr.
The deputy governor’s position in Nairobi County has been vacant since Mr Igathe resigned on January 12, 2018.
The Constitution does not envisage a vacancy upon death, impeachment or resignation of a deputy governor.
But in March 2018, the Supreme Court ruled that a governor has 14 days to nominate an individual from the date a vacancy arises, and that the county assembly shall within 60 days approve or reject the nominee.
Prior to the ruling, a bill seeking to allow governors to appoint their deputies whenever a vacancy arises had been tabled in the Senate.
The County Governments (Amendment) Bill, 2018 sought to address the gaps in the Constitution in the wake of Mr Igathe’s resignation as well as in Nyeri where the deputy governor, Mr Mutahi Kahiga, had just replaced his boss, Mr Wahome Gakuru, who had died in a road accident on November 7, 2017.
Governor Kahiga would appoint his deputy in 2018. In Bomet County, Governor Hillary Barchok, who left a vacancy in the office when he succeeded his boss, the late Joyce Laboso mid this year, also appointed his deputy.
In January 2018, Governor Sonko nominated exiled lawyer Miguna Miguna as his deputy but the Speaker vetoed the name, arguing the nominee was not a Jubilee Party member.
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