Law is silent on impeachment of deputy governors


Can a deputy governor be impeached?

Recently the Embu County assembly started a procedure for impeachment of the governor and his deputy. This is a historical event under the current Constitution since it is the first time a governor is facing an impeachment and could set a precedent for other counties.

However, several fundamental questions arise out of this process. First of all it makes one wonder whether the deputy governor can also be impeached for irregularities committed by the governor.

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Secondly, it is worth it to scrutinise what the law says about impeaching the deputy governor.  The Constitution has spelt out the grounds and procedures for impeaching the President and the deputy President.

The offices were clearly separated in terms of procedures. The Constitution avoids an ambiguity regarding this procedure. However, as regards the deputy governor ,no distinct procedure has been mentioned. Often a mistake is made to suggest that what applies to the President and his deputy applies to the governors and their deputies.

But in law ambiguity has no place. In the event of grey areas an amendment is required, or maybe an interpretation from the Supreme Court.

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The county assembly alone cannot decide this on their own due to possibility of vested interest influencing the process. The Constitution of Kenya has given direction on matters of impeachment and removal of all elected officials. From the President of the republic to the county assembly members various methods of removal from office have been prescribed by the Constitution.

In Chapter 9, Articles 144, 145, 150 and 151 the removal of the President and his deputy is clearly stipulated. The Constitution is very clear on this.

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There is a clear reference to the ways of removal of the Deputy President. Article 150 clearly states that the provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President. There is no ambiguity here. One does not need a Constitutional  lawyer to understand these provisions.

The removal procedures, according to the  Constitution, for the President and his deputy are based on two main parameters. In the first part, the issue of incapacity or inability by the President to perform his duties causes him to cease holding office. After a motion supported by at least a quarter of the members of the National Assembly is passed, the Chief Justice shall appoint a three-member committee to determine whether the President is fit to  hold office.

The second part is the impeachment clause of Article 145. Here the process starts with the National Assembly. A motion supported by  one third of the members of the National Assembly is required. Once the motion is passed, the Speaker of the National Assembly will notify the Speaker of the Senate who shall form a committee of 11 persons to investigate the allegations and recommend to the Senate whether the impeachment is justified.

The Senate then converts into a court of law and might pass a motion of impeachment when at least two-thirds of members agree to impeach the President. Article 151 of the Constitution makes a reference to Article 145 in matters regarding the removal of the deputy President.

The Embu case is sad because the deputy governor was not in the picture of what transpired. The county assembly just decided to merge the offices together whereas the Constitution has clearly separated them.

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From the Press one can see that there was an issue regarding appointment of the county secretary. The governor was accused of favouritism in appointing the county secretary. Secondly, there was an issue of procurement irregularities. Both cases are outside the powers of the deputy governor. Can a deputy governor be impeached?

Appointing authority rests squarely on the governor under Section 30(b) of the County Governments Act and Article 179(2)(b) of the Constitution. The law therefore fails to provide for avenues of consultation between the governor and deputy governor as regards appointments.

Under Section 32(4)(5) of the County Governments Act  the power to nominate, appoint or dismiss cannot be delegated to the deputy governor by the governor.

Article 182 (2)of the Constitution gives direction on how a vacancy in the office of the governor can be filled....the deputy governor shall assume office for the remainder of the term. Section 33 of the County Governments Act on the procedure of the removal of governor from office is silent on the removal of a deputy governor.

In the first instance the deputy deputises the governor in everything else except in appointment and dismissal of the county staff. In this case, the question arises  whether it is prudent for the assembly to accuse the deputy governor on this issue.

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As regards procurement, this department falls under finance and the county treasury. My view therefore is that the Senate in its proceedings first needs to investigate the admissibility of a deputy governor in an impeachment process.

The law, however, is very clear on matters regarding the the removal of the deputy governor through the courts in matters regarding Chapter 6 of the Constitution on issues integrity. 

The writer is Deputy Governor, Isiolo County and Chairman, Deputy Governors’ Forum.

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Embu County Mohamed Guleid