Elachi or no Elachi should Sonko be charged in court? Lawyers clash

Constitutional lawyer Kamotho Waiganjo says Nairobi County Assembly Speaker Beatrice Elachi cannot assume gubernatorial duties because holder, Mike Sonko, remains the lawfully elected governor, and that the only way the Speaker can take up the governor’s functions is when the county leader is successfully impeached, or when he or she it out of office as stipulated in Chapter 11, Section 182 of the Kenyan Constitution.

“There will be a gap in the executive leadership of the county government, because, legally, Elachi cannot take up Sonko’s duties, given the governor has not vacated office on grounds of Chapter 11, Section 182 of the Constitution. As the country’s leadership seeks to amend the Supreme Law, those are some of the gaps they should address,” said Waiganjo.

According to Waiganjo, Sonko does not stop being governor because of an active graft case against him in court.

“Should he be charged in court, he could be barred from accessing his office or discharging certain duties as a governor. However, Constitutionally, he remains the valid holder of the seat, the same way Kiambu’s Ferdinand Waititu and Samburu’s Moses Lenolkulal are still the valid holders of the respective positions despite their deputies taking charge of county affairs in acting capacity,” said Waiganjo.

Waiganjo’s school of thought is, however, challenged by another Constitutional lawyer, Bobby Mkangi, who argues that in absence of a deputy governor, then the County Assembly Speaker has every right to assume the gubernatorial duties for at least 60 days, as the law says.

“Yes, the Constitution says that the Speaker can only assume the gubernatorial functions for 60 days, and a by-election, follows, thereafter. But, that only happens when the governor’s seat is vacant as a result of death, resignation, mental incapacitation, or he or she has been pushed out after being declared guilty of a criminal offence attracting a jail term of at least 12 months. In Sonko’s case, none of the above has happened, and therefore, he remains the substantive County Government leader, only that he might be suspended in compliance with a court order,” Mkangi told K24 Digital.

Sonko, who is accused of misappropriating taxpayers’ Ksh357 million, was arrested Friday mid-morning on a roadblock in Voi, Taita Taveta, County.

Besides the county chief, other City Hall officials expected to be arrested and charged in court over corruption allegations include: Secretary Peter Mbugua, members of the tender committee Patrick Mwangangi, Samuel Ndung’u, Edwin Kariuki, Lawrence Mwangi, Preston Miriti among others.

DPP Noordin Haji said Sonko and the mentioned officials will face charges of conspiracy to commit economic crime, willful failure to comply with the law and conflict of interest.

Haji further said the anti-graft agency, EACC, commenced investigations into the alleged crimes in October 2019, and sufficient evidence was gathered to sustain the suspects’ prosecution.