December 18, 2020 - 5 minutes read

Senate Hearing 16th-17th December 2020

By Francis Monyango

On Thursday, December 03, 2020, the Nairobi City County Assembly approved a Motion for the removal from office, by impeachment, of Hon. Mike Mbuvi Sonko, the Governor of Nairobi City County. The Speaker of the Senate was then informed of the approved Motion via a letter dated Friday, December 04, 2020. The Letter had also forwarded several documents that included a list of names and signatures of Members of the County Assembly as well as the votes and proceedings of the sitting of the County Assembly.

The Senate then held a special sitting on Wednesday, December 09, 2020 to hear the charges against the Governor of Nairobi City County. The days, Wednesday, December 16, 2020 and Thursday, December 17, 2020, were then appointed as days for Special Sittings of the Senate to investigate, in Plenary, the proposed impeachment of Hon. Mike Mbuvi Sonko.

The Role of the Senate

The Senate’s mandate in regard to the removal of a governor from office is provided for under Article 181 of the Constitution, as read together with Section 33 of the County Governments Act, 2012 and Standing Order 75 of the Senate Standing Orders. Article 181 of the Constitution provides that a county governor may be removed from office on any of the following grounds––

(a) gross violation of the Constitution or any other law;

(b) where there are serious reasons for believing that the county governor has committed a crime under national or international law;

(c) abuse of office or gross misconduct; or,

(d) physical or mental incapacity to perform the functions of office of county governor.

The Charges

The Charges against the Governor, as submitted by the County Assembly are based on four grounds as outlined herein below:

1.  Gross violation of the Constitution; The County Governments Act, 2012; The Public Procurement and Disposal Act, 2015; and the Public Finance Management Act, 2012.

  • The Governor violated the principles of public finance management on the use of conditional grants from the National Government, by the diversion or negligently causing to be diverted Conditional Funds. For instance, in the use of the road levy and bursary funds to pay for garbage collection contractors and lawyers, contrary to the Bursary Fund Regulations and the approved budget.
  • The Governor violated the national values and principles of governance and public finance management by failing to comply with the provisions of the Public Finance Management (County Governments) Regulations, 2015, which failure has compromised the provision of services envisioned under Part II of the 4th Schedule to the Constitution 2010, including the provision of health services during the pandemic.
  • The Governor of the Nairobi City County has violated Article 187(2)(a) of the Constitution and Article 5.2 of the Deed of Transfer, by his continued willful refusal to execute the statutory warrants essential to the release of funds from the County Revenue Fund, which has grounded the provision of services of not only the county executive, but of the Nairobi Metropolitan Service (NMS) and its exercise of the transferred functions.
  • The Governor has violated the provisions of Article 183 of the Constitution as read together with Standing Order No. 193 and Section 123 of the Public Finance Management Act, 2012 by undermining the authority of the County Assembly, whence the Governor has refused and or failed to implement resolutions of the County Assembly or forward a report detailing his inability to do so in line with Article 183 of the Constitution as read together with Standing Order number 193, with respect to County public debt and debt management under the provisions of Section 123 of the Public Finance Management Act, 2012. Failure of which, the county has been unable to control and manage county public debt. The result is unmitigated accrual of debt which has ballooned the county’s overall debt to unmanageable levels rising from Kshs56 billion when he assumed office in 2017 to Kshs76.794 billion as at 31st December, 2019 hence further violating the provisions of Article 201 of the Constitution.
  • The Governor has violated Article 227 (1) of the Constitution on procurement of goods and services as read together with provisions of the Public Procurement and Disposal Act, 2015 by flouting the principles of public finance management in as far as public procurement of goods and services is concerned. The Public Procurement Regulatory Authority (PPRA) faulted the procurement process for the construction of the Dandora Stadium. The Authority flagged irregularities in the award of the tender, alteration of contract specifications, suspected irregular payments and forgery of documents. Despite technical evaluators questioning the quality of work, the PPRA indicted the county government for paying Kshs196.87 million to the contractor
  • The Governor violated Section 35 (4) and Section 45 (1) of the County Government Act, 2012 as read together with Section 104 and Section 148 of the Public Finance Management Act, whence between 2018 and early 2019, contrary to the law, the Office of the County Executive Committee Member (CEC) for Finance and that of the Chief Officer for Finance, were held by the same person, one Ms. Winfred Gathagu, which situation occasioned confusion and inefficiencies at the County Treasury, hence failing to promote good governance and compromising the doctrine of transparency and accountability within the county government.
  • The Governor has violated the provisions of Section 104 of the Public Finance Management Act, on the responsibilities and powers of a County Treasury, whence through inaction, action, omissions and commissions, he continues to preside over a broken public finance management system, whence the county treasury remains ineffective. Despite various resolutions of the County Assembly urging the governor to improve efficiencies by decentralizing the finance function to sectors as required by the provisions of Section 148 of the Public Finance Management Act, 2012 the county continues to operate in contravention of the law.
  • The governor has violated the provisions of Article 5.5 of the Deed of Transfer of Functions by his refusal to hand over the necessary documentation to enable the Kenya Revenue Authority (KRA) to undertake optimal revenue collection under the transferred functions. For instance, by the end of June 2020, the county had collected just Kshs8.4 billion, against a projected revenue target of Kshs17.05 billion. This was partly due to failure by the county government to facilitate the KRA to hit its optimal potential as the revenue collection agent appointed pursuant to the Deed of Transfer of Functions.
  • The governor grossly violated Article 201 of the Constitution on the prudent use of financial resources and Section 159 of the Public Finance Management Act, 2012 as read with Section 7 of the Nairobi City County Tax Waivers Administration Act, 2013 by unilaterally and arbitrarily issuing waivers in total disregard of the law. The governor was aware that the law provides that waivers should be granted by the CECM for Finance.
  • The Governor has violated the provisions of Article 201 (d) of the Constitution on principles that guide all aspects of public finance in the Republic and Article 227 (1) on procurement of public goods and services and the provisions of the Public Procurement and Disposal Act, 2015 by willfully interfering in the award of the tender for the construction of the Dandora Stadium as established by the Public Procurement Review Board (PPRB), leading to loss of public funds in overseeing payments despite concerns by technical officers.
  • The Governor has violated the provisions of Article 201 of the Constitution and the Public Finance Management Act, 2012 on principles that guide all aspects of prudent use of public finance, where either intentionally or negligently, he presided over massive loss and theft of county public funds in the three years he has been in office. This is as evidenced by the Auditor-General’s Report of Financial Year 2018/2019, which raised the red flag over the city’s stalled Kshs204.2 billion projects as well as failure by the county government to meet its revenue targets.
  • The governor has violated the provisions of Article 5 of the Deed of Transfer of Functions by sabotaging the transfer of functions. The governor is yet to provide the Nairobi Metropolitan Services (NMS) with crucial information necessary in aiding the carrying out of the transferred functions. For instance, failure to facilitate NMS with data on ongoing projects, pending bills and staff payroll details on transferred functions has greatly derailed the performance of these functions to the detriment of the public good.

2.      Abuse of Office

  • The governor abused his office by violating Article 75 of the Constitution as read with Sections 11 and 13 of the Leadership and Integrity Act, 2012 on the conduct of State officers, where the governor has persistently intimidated, harassed, molested officers of the County Executive, including blackmailing his CECs and Chief Officers with one year contracts whose renewal he has undertaken arbitrarily, leaving the officers jittery about their employment and creating a climate of fear, uncertainty and despondence. For instance, in May 2019, the governor failed to renew the contracts of all 23 Chief Officers, instead directing that they handover to directors, greatly affecting the continuity of service delivery and accountability in the county
  • The Governor has abused his office by violating Article 75 of the Constitution as read with Section 16 of the Leadership and Integrity Act, 2012 by unlawfully using public funds to pay for his daughter’s travel to New York, USA, to allegedly attend the County First Ladies’ Conference, held during the 66nd Session of the Commission on the Status of Women, 2018.

3.      Gross Misconduct

  • The governor violated Article 73 of the Constitution by failing to promote public confidence in the integrity in the office of the governor, following his being charged before the Anti-Corruption Court, thus prejudicing and or compromising the social contract and trust bestowed upon him by the people of Nairobi County by virtue of Article 1 of the Constitution. As a consequence, therefore, the governor was barred from accessing his office vide a Court Order, thus incapable of performing his functions under Section 30 of the County Governments Act, 2012.
  • The Governor has violated Article 73 of the Constitution and Sections 8 and 11 of the Leadership and Integrity Act, 2012 on public trust and professionalism where he is on record admitting that he was intoxicated and thus not in the right frame of mind when he signed the Deed of Transfer for the transfer of certain functions of the county to the national Government in February 2020.
  • The Governor has violated Article 73 of the Constitution and the Leadership and Integrity Act, 2012 on the responsibilities of leadership, by failing to professionally perform his constitutionally sanctioned duties, owing to his constant absence from office even before he was formally restrained by the courts from accessing his office due to corruption charges, whence the governor remained constantly unreachable in person or on his phone for inordinately longer periods of time, to the huge detriment of the performance of the functions of the County Executive.
  • The Governor violated Article 75(1) (c) of the Constitution as read together with Section 11 of the Leadership and Integrity Act, 2012 in respect of conduct of State Officers by drawing a salary and hefty allowances and enjoying the privileges of the office he holds, while failing to diligently report to work and being perennially absent, even before he was formally restrained by the courts from accessing his Office due to corruption charges.
  • The Governor violated Section 8 of the Leadership and Integrity Act, 2012 on Public Trust, where he has constantly used his position to abuse public trust in the County Government, by exercising the powers of his office in a manner detrimental to prudent public service delivery, by persistent use of divisive and unbecoming language which undermines the Office he holds and the County administration.
  • The Governor violated Articles 73 and 75 of the Constitution on conduct of State Officers that is demeaning to the offices they hold and Section 11 of the Leadership and Integrity Act, 2012, by persistently and willfully using, publicizing and publishing abusive and unbecoming words and language, as evidenced by his social media posts and numerous rants, in which he has hurled abuses and conducted himself in a manner that undermines and demeans the Office of the Governor.

4.      Crimes under National Law

There were serious reasons to believe that the Governor had committed crimes under National law, specifically the Anti-Corruption and Economic Crimes Act, which crimes he had been charged for in the Anti-Corruption Court. 

The Impeachment

The Governor had attempted to block the impeachment proceedings by indicating that there was a preliminary objection raised on how the impeachment process had been undertaken by the county. He also alleged that the matter is still pending in court. It was however determined that the issues raised required evidence.  Earlier this week, the Court declined to issue conservatory orders stopping the hearing of Governor Mike Sonko’s impeachment at the Senate. The required evidence was however not adduced and as such, the impeachment hearing went on. Both parties had at least three witnesses. Sonko was also given a chance to represent himself. After the hearing, the Senate proceeded to vote by County Delegation. In all the charges, 27 Senators voted “Yes”, 16 voted “No” while 2 abstained. The Yes votes sealed the fate of the Governor. 

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