Operations at City Hall have been paralysed due to a court order stopping the vetting of 10 members of the county executive committee nominated by Governor Johnson Sakaja, a judge heard on Monday, as the governor defended the alleged exclusion of some minority groups.
Governor Sakaja, through lawyer Dancan Okatch, told judge Anne Mwaure that the orders have greatly prejudiced the planned vetting process as former executives cannot perform any duties at the county government.
Mr Okatch urged the Employment and Labour Relations Court judge to lift the orders.
The interim orders were issued on November 8 following a lawsuit filed by the Association of Muslim Lawyers and the Nubian Rights Forum.
The two groups moved to court to challenge Mr Sakaja’s nominations, arguing they were not represented as no individual professing the Islamic faith was short-listed yet they contribute 30 per cent of Nairobi City County’s Gross Domestic Product.
They also faulted the governor for not picking any Muslim among his nine senior advisers.
But Mr Sakaja avers that he publicly announced a list of nominees for CECs and advisers, contrary to allegations by the petitioners that he did not make the list public.
The governor argues that he has the discretion and liberty to nominate and appoint anyone as a CEC as long as the person has met the required qualifications.
He says Article 27 of the Constitution provides for equal treatment, including the right to equal opportunities in political, economic and social spheres and equal protection and benefits.
However, he says the Article should not be interpreted to mean that the governor has the duty to include everyone in his appointments considering that there are over 47 tribes and five religions in Nairobi.
“We even have atheists who have coalesced as an association. It may be worth noting that there were only 10 slots for the list of nominees for the position of county executive committee members hence it was humanly impossible to include all 47 tribes and all the religions in Kenya. No matter how many other opportunities are availed, it will be practically impossible to so include,” Governor Sakaja stated in his response to the suit.
He went on: "The mere fact that the petitioners are purporting to contribute 30 per cent of Nairobi City County’s GDP is not even backed by any documentary evidence or survey or data.”
He says once the court sets aside the orders, the list of the nominees will be subjected to vetting by ward representatives, which is an open and transparent process. “Therefore, the said request by the petitioners is premature and an abuse of the court process; the nominees have to be vetted by the County Assembly and the said nominations will only become valid upon approval by the County Assembly," Mr Sakaja told the court.
Justice Mwaure will rule on whether she will lift the orders on Tuesday next week.