By Prof Gitile Naituli
Governor Kawira Mwangaza has, for the third time, been impeached by the Meru county assembly.
The assembly passed the resolution in defiance of several attempts to compromise MCAs through financial inducements, court battles as well as deployment of divide and rule tactics by the governor.
After the county assembly forwarded the impeachment articles to the Senate, her fate lies in the upper House.
This is the elephant in the room. The governor has faced the Senate on two previous impeachment proceedings.
However, the senate converted all the proceedings into a callous theatre of the absurd by awarding the governor with blank cheques for impunity and arrogance.
The question is…who between the Senate and the county assembly is constitutionally vested with the role of impeachment of governors?
Article 176 of the constitution vests the county assembly with the duty to oversight the county executive organs among the roles of representation, legislation and vetting of appointments. It is important to note that impeachment is an oversight function.
Article 96 of the constitution enumerates functions of the senate as representing interests of the counties, law making, allocation of resources to the counties and more importantly, considering and determining the motion for removal of the president and deputy president.
Judged in the light of the two articles, it is clear that the role of impeachment of governors is constitutionally exclusive to the county assemblies in execution of oversight function over county executive.
Article 96 confers the senate the power to consider and determine impeachment motion for removal of president and deputy president.
“If the drafters of the constitution intended the senate to play such role, there’s nothing which would have prevented them from including the same….removal of the president, the deputy president, and the “governors”.
Prof Naituli
Unfortunately, the senate gerrymandered itself into the process through the County Government Act in a clear contradiction of the letter and spirit of the constitution.There are good reasons why the constitution does not include the senate in the impeachment of governors.
(a) A second motion of impeachment in the senate becomes a cumbersome stunt for the senate to impeach the decision of the county assemblies. It is a weird phenomenon for a legislative house to impeach another legislative house or to sit in judgement of an oversight decision made by the lower house without direct authority from the constitution.
The interference by the senate in county assemblies oversight of governors has gravely impaired the effectiveness of accountability and checks and balances at the counties.
“Governors facing impeachment proceedings have always dangled cash to MCAs arrogantly, telling them if you refuse to eat, senators will.”
This power grab by the senate is an attempt to amend the constitution through the County Government Act and should be challenged in court.
(b)Political considerations. Due to vested political interests, the senate is ill-equipped and lacks the balance to interrogate the decision of county assemblies and arrive at a just conclusion.
(c)Senators are concerned with national issues or matters affecting the counties they represent. As such, they have little knowledge and time to understand the unique circumstances and the micro dynamics of each county.
To expect the senator of Kakamega to grasp issues relating to Meru through a mere impeachment motion on the floor of parliament is the height of naivety. You cannot expect a lucid outcome from such a scenario. Even though the senate is largely idle, nothing justifies snatching away any function from county assemblies.
(d) The way to challenge and determine the validity of impeachment of a governor by county assembly is through petitioning the court. The court has the constitutional mandate, intellectual capacity, and impartiality to deliver justice and clarify the law.
(e)Corruption. There has been credible information that senators are given money by impeached governors in order to save their political lives.
For example, during Governor Kawira’s last Senate proceedings, it was questionable how the Senators ignored the real issues and created diversionary bogeyman in the form of gender.
Even more pathetic was the personalised attacks and insults directed at the lawyers for the county assembly in a setup where they could not defend themselves. The senators were seemingly highly motivated.
It is alleged that, in the following weeks and months, some of the senators who were super vocal in defence of the governor became permanent features in the corridors of Meru county offices.
According to sources within the county, it was an open secret to the staff that the said senators were fast tracking contracts which they had been promised in order to defeat the impeachment motion.
The way forward is for the county assemblies to go to court and seek reversal of the unconstitutional usurpation of power by the senate.
“In my view, aspects of section 33 of the County Governments Act which purports to grant the senate powers in the process of impeaching governors through the back door contravenes the constitution and should be declared null and void.”
Prof Naituli
The reason for this is simple, Impeachment is a political trial by peers that, to some extent, restricts the enjoyment of the right to a fair trial before an independent tribunal.
Hence, it can only be legitimate where it is anchored in the Constitution. It can not be anchored in Statute as is the case for county officials.
Secondly, impeachment that does not involve trial by an independent tribunal only happens in bicameral legislatures, where one house (usually the lower house) impeaches and the other (usually the upper,) conducts the trial. The American impeachment process is a good example.
Where there is a unicameral legislature, trial after impeachment must take place before an independent tribunal.
The same legislature can not both impeach (accuse), then conduct the trial, and pass a verdict.
That, in my opinion, would be a major breach of principles of natural justice, which provide that one cannot be the accuser, judge, and jailer rolled into one.
As stated, the Constitution of Kenya, 2010, does not provide for the removal by impeachment of county officials.
Impeachment is only provided for the president, deputy president, and cabinet secretary.
Hence, there is no basis for removing county governors and speakers by impeachment.
But if they have to be removed by impeachment, then after the accusation in a county assembly, their trial must take place before an independent tribunal.
The dissatisfied party can lodge an appeal in the high court.The Senate has absolutely no role in the removal of county officials by impeachment.
To begin with, the constitution does not vest such powers on the Senate.
Secondly, the Senate does not share the same electoral base as county assemblies, yet impeachments are limited to electoral units.
For example, a Senator from Mandera County has no business presiding over the impeachment of the Governor of Meru County.
Nevertheless, until section 33 of the County Governments Act is challenged in the high court, the senate remains the only body that is authorised to conduct the trial of the governor of Meru.
This time round, the senate should listen to the impassioned cry from the Meru people.
The house must rise above personal interests just like the MCAs have done and stand with the people of Meru.
For devolution to make sense, MCAs must be recognised rightly as vital players in county affairs and not as moot actors whose actions and resolutions are dismissed and defeated by a wave of the hand by people who play no direct role in their counties.
The people are waiting and keenly watching. Meru deserves a new beginning.
So much time and resources have been wasted in feeding the governor’s ego.
