Unanimous Supreme Court judgement that left most governors shaken

Embu Governor Martin Wambora when he appeared before the Senate Special Committee on Monday February 11, 2014 over his impeachment. [Boniface Okendo|Standard]

Governors will now live in perpetual fear of their county assemblies after the Supreme Court barred courts from interfering with impeachment processes until they are done.

In their unanimous but least reported decision issued last month, Supreme Court judges faulted the lower courts for prying into legislative duties of Members of County Assemblies (MCAs)- the foot-soldiers of devolution. A boon to MCAs, the decision arose from an appeal filed in the protracted Embu Governor Martin Wambora’s impeachment of 2014.

Legal battle

After a three-year legal battle, Supreme Court judges Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola quashed the High Court orders that saved Wambora.

Besides stoking more fire in the belly of MCAs, the decision has also given Governor Wambora’s political enemies another fighting chance.

Senator Lenny Kivuti’s running mate in gubernatorial race Emilio Kathuri has gone to court to enforce the Supreme Court decision on Wambora’s impeachment. The matter comes up for hearing this week. “No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson signal that the judicial organ must practice the greatest care, in determining the merits of each case,” the judges said.

The case had been lodged by former Speaker of the Embu County Assembly Justus Mate and the Clerk Jim Kauma. They had argued that courts cannot stop sequential flow of a legislative process that is already defined in its time-frame.

They argued that the removal process for a governor in office had to be done within seven days, failure to which, the impeachment process would have been rendered useless. The Supreme Court agreed with them: “This court had the opportunity to consider the question of constitutional timelines. All indications, from the stand of the superior courts, are that expressly-prescribed constitutional time-frames are binding on the governance processes in place.”

Wambora’s impeachment motion was tabled before the county assembly on January 16, 2014. Apprehensive that MCAs would pass a resolution to impeach him, the governor rushed to the High Court and obtained temporary orders stopping them in their tracks.

He was however impeached five days later. He moved back to the court arguing that Speaker of the Assembly and the Clerk acted in contempt of its orders. The court agreed and declared the impeachment a nullity.

In court, Mate and Kiuna insisted that they had not seen the court orders and that they had immunity from being held culpable for any official decisions of the assembly. They appealed the decision at the Court of Appeal and lost.

Parliament’s independence

They then moved to the Supreme Court arguing that the judiciary had no powers to meddle with the decisions of legislative bodies.

“Parliament’s functions and processes must be allowed to run through to completion, before the jurisdiction of the courts can be properly invoked,” the judges said.

In the hearings which begin this week, Kathuri wants the judgment of the Supreme Court executed.

“The Supreme Court reversed the decision of both courts to the extent it declared that the order made on January 21, 2014 as unconstitutional, null and void ab initio.”

“I believe that the respondent (Wambora) was therefore removed from office in the manner provided for and contemplated at Article 181 of the Constitution,” he says in his affidavit.