The Nairobi governor’s by-election that never was

If the electoral commission had its way, Nairobi voters would be casting their ballots today in a by-election to get the third governor of Nairobi County, following the impeachment of Mr Mike Sonko by Nairobi MCAs in December.

However, a litany of court cases put paid to the by-election by the Independent Electoral and Boundaries Commission (IEBC).

On December 21, 2020, the electoral commission gazetted the by-election date after Senate Speaker Ken Lusaka declared a vacancy in the Nairobi governor's seat on December 17.

This came after the Senate upheld the resolution by Nairobi MCAs to send Mr Sonko packing on December 3, on claims of gross misconduct, abuse of office, gross violation of the Constitution and other national laws, as well as crimes under the national law.

“Following declaration of vacancy that occurred in the office of the county governor, Nairobi City County, following the impeachment and subsequently, the swearing-in of the Speaker of the County Assembly of Nairobi as the acting county governor on December 21, 2020, there shall be a by-election for the county governor of Nairobi County on Thursday, February 18, 2021,” read the gazette notice by IEBC Chairman Wafula Chebukati.

But even before the Government Printer could replace the cartridge used to print the gazette notice, the former City Hall boss rushed to court to stop the planned by-election.

The ousted governor filed a petition at the High Court challenging the decision by the Senate to uphold his impeachment. He sought a court order stopping the by-election in Nairobi.

Mr Sonko contested the process that led to his impeachment by the county assembly, claiming it was conducted in utter breach and disregard of the democratic principles and separation of powers.

Nairobi County Assembly Speaker Benson Mutura would, nonetheless, be sworn in as acting governor on December 21, with Nairobi County having had no deputy governor who would have been a shoo-in into the position.

But Mr Sonko, who was once Makadara MP, would challenge the assumption of office of Mr Mutura as acting governor, claiming it was done in violation of the Assumption of Office of the Governor Act. He asked for the status quo to remain as he sought to be reinstated.

“The Act says the swearing-in should happen after 10 days but in this case, it was done within three days. There was abdication of the duty to abide by the rule of law. After the swearing-in, the acting governor signed into law the Finance Appropriation Bill on the disbursement of funds. Such issues may be rendered nugatory,” argued Mr Wilfred Nyamu, who was Mr Sonko’s lawyer.

And so, early last month, High Court Judge Anthony Mrima suspended the gazette notice calling for the Nairobi by-election.

Justice Mrima said the order will remain, pending determination of Mr Sonko’s case, in which he challenges the ouster process and seeks his reinstatement as the county chief.

According to the order, effects of the gazette notice, such as clearance of candidates for the by-election, procurement of poll materials and training of election officers by the electoral commission, stood suspended.

But a behind-the-scenes scheme saw former Disaster Management and Coordination Chief Officer Anne Kananu vetted by the county assembly for the deputy governor’s position.

A petitioner, Mr Peter Agoro – who had occasioned the suspension of Ms Kananu’s vetting last year – later went to court to withdraw the petition he had filed in 2019 challenging her nomination as deputy governor by filing a notice to withdraw the case.

This paved the way for the eventual vetting of Ms Kananu, before finally assuming office as acting governor, pending the determination of a case by the Law Society of Kenya seeking a court order to stop her intended swearing-in as the third governor of Nairobi.

Mr Mutura immediately handed over the reins of City Hall to Ms Kananu on January 17, 2021.

With no by-election in sight, signs point towards Ms Kananu ruling the roost in Nairobi until the next election in 2022.