Round one win for Governor Abdulswamad in petition challenging legality of his Cabinet

Mombasa Governor Abdulswamad Shariff Nassir has won round one in a petition challenging the nomination of ten members of the executive he had unveiled last week, this is after the Employment and Labour Relations Court sitting in Mombasa declined to issue conservatory orders to block their approval process.

Governor Abdulswamad had appointed 10 CECs, the County Secretary, and the Chief Executive Officer of the Mombasa County Public Service Board, and a host of advisors to help him run the government.

However, four Mombasa residents - Abdullmajid Ali Busayyid, Mesh Mwaniki, Maria Magdalene Fernandes and Mohammed Mohsin Abdulkarim - moved to court under the certificate of urgency seeking orders to block the appointment process.

The four, through their lawyer David Maseke of Shabaan Associates LLP, said the governor had contravened the law in nominating the individuals.

They sought orders to stop the Mombasa County Assembly from debating, vetting and approving the nominees, arguing that the nomination exercise had been shrouded with a lot of secrecy.

Maseke told the court that the four residents had raised legal fundamental issues in the application and petition as the nomination had failed in public participation, the principle of affirmative action and the competitive and fair process.

“This process amounted to handpicking of candidates,” said Maseke.

In the suit, they listed Nassir (first respondent), Mombasa County Public Service Board (second respondent) and the County Assembly of Mombasa (third respondent).

Nassir and Mombasa County Assembly were represented by county lawyer Murtaza Tajbhai and the County Public Service Board was represented by Khadija Yusuf.

All the ten CEC nominees, the nominee for County Attorney and the CEO of Mombasa County Public Service Board were listed as interested parties.

In her ruling after two days of oral submissions through virtual court proceedings, Lady Justice Agnes Nzei pointed out that the petitioners had failed to prove the Governor contravened the Constitution.

“What legal transgression did the first respondent (governor) commit in the appointment of the CECs? I do not want to issue orders that will paralyze operations of the county government and affect the citizens, unless I’m convinced otherwise,” Nzei asked the petitioners’ lawyer.

She added, “I decline to give conservatory orders at this stage, however, liberty to apply for further orders is given if there is an attempt by any party to defeat the course of justice.”

However, Nzei agreed to certify the matter as urgent and gave the respondents until Monday to file and serve their responses.

She also allowed the interested parties to file their responses within the same period and the petitioner shall file further submissions on Tuesday.

The petitioners, she said, will be given Tuesday next week to respond to the respondent’s written submission. On Wednesday the respondent will be allowed to court the petitioners’ further submissions.

Nomination process followed law

However, Tajbhai said there are actually three ladies in the list; Dr Swabah Ahmed (Health), Emily Achieng (Water) and Kibibi Abdhallah (Blue Economy).

Tajbhai also faulted the petitioners’ prayers to block the vetting process of the nominees, saying that it will affect service delivery in Mombasa.

“The gubernatorial election was held late in Mombasa, stopping the process of vetting and approving the nominees will affect service delivery in Mombasa. I object,” he said.

In their prayers, the petitioners had also sought orders to nullify the appointment process of the nominees, due to lack of public participation.

The judge said public participation will take part during the vetting process; therefore, the appointment cannot be nullified as the process had not been concluded.

“How do you nullify a process that has not gone full cycle? The public participation in this matter will be at the vetting at the county assembly,” she said.

In a protest letter to the governor Faki poked holes into the list of the nominees saying it lacked the face of six sub counties. said.

Tajbhai said, “The nomination process is not an appointment.”

“The governor has only done nominations, he has not appointed anyone. The issue of minority, gender, and academic qualification of individuals can be addressed during the vetting process. The process is basically not yet over.”

Nzei agreed with Tajbhai saying that “The assembly will vet, ‘purify’ the list and convey it back to the governor for appointment.”

However, Maseke insisted that the petitioners have a constitutional right and deserve an audience to be heard on all the issues they presented.

Carry nomination exercise afresh

Meanwhile, Mombasa Senator Mohamed Faki has waded into the controversy by urging the Governor to carry out the nomination exercise afresh.

In a protest letter to the governor, Faki poked holes into the list of the nominees saying it lacked the face of six sub counties.