Structural Flaws and the Impeachment of Governors

The current legal framework for the impeachment of governors and their deputies has too many structural defects, which raise many issues of principle. This post outlines six of the structural defects and the related issues of principle.

The first structural defect of the current legal framework for the impeachment of governors and their deputies revolves around the membership of a special committee of the Senate inquiring into impeachment charges. Should the membership of the special committee be capped at 11 as decreed in section 33 (3) (b) of the County Governments Act? The problem here is that 11 members comprise only 16% of the Senate’s 67 members. The question of whether the membership of the special committee should be capped at 11 is essential because section 33 (6) (a) of the County Governments Act forbids the Senate from overturning a decision of the special committee to reject any impeachment charge. How can a decision supported by 65% of MCAS from the affected County be rejected, without any recourse, by a special committee comprising only 16% of the Senate’s members? How can a decision of a committee comprising 16% of the Senate be binding on the whole Senate?

Secondly, section 33 (6) (a) of the County Governments Act looks anomalous, if not bizarre, when juxtaposed with section 33 (6) (b) of the same Act. Section 33 (6) (b) permits the Senate to overturn a decision of the special committee to uphold an impeachment charge. How can the Senate be precluded from overturning a special committee’s decision to reject an impeachment charge but at the same time be permitted to overturn a special committee’s decision to uphold an impeachment charge? What is the purpose of impeachment if the Senate can vote to overturn a guilty verdict by a special committee after a full inquiry? For the uninitiated, this means the law expressly ties the outcomes of impeachment motions more to party/coalition politics than to facts and evidence.

The third structural defect and issue of principle that arises from the current legal framework for the impeachment of governors and their deputies relates to the role of nominated senators. Section 33 (7) of the County Governments Act and section 70 (6) of the Senate Standing Orders prohibit nominated senators from voting on impeachment charges in plenary. The same nominated senators, however, are allowed to vote, and their vote can be decisive, when impeachment proceedings take place before a special committee. There is no justification, in principle, for allowing nominated senators to vote on impeachment charges before a special committee and prohibiting them from voting on the exact charges in plenary.

The fourth structural defect and issue of principle that arises from the current legal framework for the impeachment of governors and their deputies relates to bias (specifically, the likelihood or perception of bias). A Senator can sit in both initial and subsequent special committees for the impeachment of the same governor. When the matter was raised in Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR, the Court of Appeal held that the situation presented a likelihood of bias. The Court of Appeal decision, however, has not stopped the Senate from appointing or considering appointing some senators to the first and subsequent special committees to probe the impeachment of the same governor.

The fifth structural defect and issue of principle that arises from the current legal framework for the impeachment of governors and their deputies relates to timelines. County Assemblies must dispense with an impeachment motion within seven days. The Senate, on the other hand, must dispense with the same motion within ten days. Too many activities take place within the incredibly short timelines. As a result, there is little prospect for a proper inquiry into the charges both at the County Assembly and at the Senate. Specifically, the trial/hearing is limited to a day or, at most, two days. In short, the unreasonably short timelines violate the inviolable constitutional requirements of fair trial.

The sixth and most telling shortcoming of the current legal framework for the impeachment of governors and their deputies is that the County Governments Act, which is the overarching statute on devolution, was enacted in 2012 before the Senate came into being. Today, eleven years later, the Senate, whose core mandate is to represent and protect the interests of county governments, has not found it necessary to at least commission a thorough review of the County Governments Act. The review would address many devolution issues that have bogged down the country and the courts for the last decade.

There are many other structural defects in the current legal framework for the impeachment of county governors and their deputies, which raise many other questions of principle. I could thus go on and on. The gist of this post is that a review of the County Governments Act (Specifically, the legal framework for the impeachment of governors and their deputies) is long overdue.

© Muthomi Thiankolu, PhD