Let impeached leaders exhaust appeals before being locked out of ballot - Sonko

Oduor has told the Supreme Court that the constitutional questions surrounding impeachment and its consequences are not entirely new, arguing that superior courts have already substantially addressed the nature of impeachment, the scope of judicial review and the eligibility of impeached officials to hold or seek public office.

She further cited the Supreme Court’s 2022 decision in Sonko v County Assembly of Nairobi City & 11 Others, arguing that the judgment had already settled the legal consequences of impeachment.

Sonko, however, maintains that the Constitution protects an impeached leader from disqualification where an appeal or review against the decision forming the basis of the disqualification remains pending.

He has invoked Articles 99(3) and 193(3) of the Constitution, arguing that the provisions safeguard an individual’s eligibility where legal proceedings challenging the basis of disqualification have not been concluded.

“If an impeached leader has an active appeal in court or a review based on new evidence, they should be allowed to vie,” Sonko said, arguing that legal remedies must first be exhausted before the political consequences of removal from office can be considered final.

He also cited Article 75(3), which provides for permanent disqualification from holding State or public office for a person removed from office for contravening Chapter Six of the Constitution.

Sonko agued that Article 75(3) should not be interpreted in isolation from constitutional provisions protecting individuals whose appeals or review applications remain pending.

In his view, the permanent consequences of impeachment should only take effect after an affected leader has exhausted all lawful avenues of challenge.

“That means anyone who is impeached has a right to vie if they have an active case ongoing. That is what the Constitution says. If they don’t, then otherwise,” he said.

The debate comes as the Supreme Court considers a broader constitutional question on the eligibility of impeached leaders ahead of the 2027 General Election

The Attorney General has urged the court not to reopen what she considers settled legal questions, pointing to the 2022 Sonko judgment. She has also argued that individual eligibility disputes should be determined through specific cases rather than through an advisory opinion.

Sonko, however, maintains that a distinction must be drawn between leaders whose impeachment cases have been conclusively determined and those who are still pursuing lawful remedies.

He cited a July 13, 2022, decision by the High Court in Mombasa, in which Justices Olga Sewe, Stephen Githinji and Ann Ong’injo quashed an IEBC decision barring him from contesting the Mombasa gubernatorial election.

The three-judge bench held that constitutional interpretation must promote constitutional values, human rights and the principles contained in the Bill of Rights, including the right of a State officer to be heard and the right of citizens to choose their preferred leaders.

The court further found that because Sonko’s challenge to his impeachment was still pending before the Supreme Court, he had not exhausted his legal remedies and could therefore benefit from the protections provided under Article 193(3) of the Constitution and Section 25(3) of the Elections Act.

The ruling, however, was overtaken two days later when the Supreme Court dismissed Sonko’s appeal against his impeachment. The IEBC subsequently revoked his nomination certificate on July 18, 2022.

Sonko later sought a review of the Supreme Court decision, but the application was dismissed in 2024.

He now argues that the Mombasa High Court decision remains relevant to the current constitutional debate because it addressed the distinction between an impeached leader whose legal remedies are still pending and one who has exhausted all avenues of appeal and review.

Sonko has further argued that the Constitution must be interpreted as a single, harmonious document, saying Article 75 cannot be read independently of Article 193, which he says provides protection to citizens whose cases remain pending on appeal or review.

“We cannot selectively interpret the law or keep shifting the goalposts depending on who is affected,” Sonko said. “Ultimately, the people should have the right to choose their leaders.”

He urged the Attorney General, the Supreme Court and other State institutions to uphold what he described as constitutional protections for political rights until all lawful remedies have been exhausted.

“Stop playing with our minds. Uphold the Constitution, respect the courts, and let the people decide,” he said.