Impeachments put to question Senate bid to guard devolution

Impeachment is a political process where charges are levelled against governors or their deputies for violation of the Constitution or abuse of office. Impeachment does not equate to criminal offence per se,  that is dealt with at the judicial courts. The standard of proof and the method used to adduce evidence is different. Someone could be impeached and found guilty and if the same charges and evidence taken through the criminal system, there could be a different outcome. It is rather the cleansing of the office where the holder has brought disrepute and shame.

When the people of Kenya decided to have the devolved system of governance, those who play small gods in the West and the Bretton Woods institutions wrote off the idea and said it will fail.

The success of devolution is one of the Kenyan ideas that make us proud and it should be cherished. If you ever wanted to tell a story about a Kenyan idea, it is devolution. Devolution should be our proud statement and perhaps it should be included in our national anthem: Let Justice and Devolution be our shield.

What do we have to do as a people to see this Kenyan idea flourish? In the Constitution, the Senate has the duty of protecting devolution but the Senate seems to be a threat to devolution.

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In the last seven years since the beginning of devolution, five governors and a deputy governor have been impeached for gross violation of the Constitution and abuse of office. Shockingly, five out of the six impeachments ended up in acquittals and even the conviction was equally shocking, considering the history of the automatic acquittal. 

Stayed the course

The systemic corruption environment in the country does not support and justify acquittals by the Senate. Because of the corruption in our society, it is unlikely and illogical that all five impeachments fairly ended up in acquittals. Impeachment has two important stages. First, the county assembly will initiate an impeachment and secondly, the Senate has to confirm or reject that impeachment. The county assemblies have consistently impeached governors when they crossed the line even when there was a Senate history of automatic acquittals. The county assemblies have stayed the course regardless of the obvious acquittals.

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The county assemblies have taken the position of the protector and maintained the momentum of keeping check on imperial governors who thought and behaved like royals. From the word go, the county assemblies lost the propaganda war to governors who portrayed and painted the ugly picture of the assemblies travelling all the time and bench-marking.

Governors have not been a good brand for devolution and so is the Senate. The only adult in the devolution room seems to be the assemblies and sooner or later, the truth will come out and the assemblies will be vindicated.

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The recent impeachment and the only conviction was confusing and embarrassing. Confusing because the House refused to appoint a committee to deal with the impeachment in accordance with the Standing Orders and voted to deal with it on the plenary. Embarrassing, as political partisanship took the centre stage.

The message of these impeachments is appalling and a dangerous one. Appalling because the Senate failed to discharge its Constitutional mandate by choosing to acquit those who brought disrepute to their offices. And dangerous because absolute power now resides in just one place, Uhuru and Raila’s State House, for now. The Senate which has been charged with the duty to protect devolution is now a diminished force. This is a further manifestation and proof that the senators do not represent the people who elected them but their political royals. Why this impeachment was different is because those they represent --party leaders -- wanted a different outcome and not because there was guilt or innocence.

Lacks objectivity

History will always judge what you do. The Senate will always be remembered for the acquittals and the betrayal of the people. It has become clear that senators do not represent the people who elected them but their political leaders as was seen in the last impeachment. There is a handy rule of thumb that elected representatives must be seen to be representing their electorate. There has been profound manifestation that the Senate lacks purpose and objectivity. The Senate’s behaviour seems to be the antithesis of democratic safeguard.

Many will hope that the last impeachment will be a turning point for devolution and a warning to the imperial governors that their impeachments will no longer be handled by the rent-seeking Senate but State House. The Senate is not fit for purpose – to protect devolution -- and the sooner it is scrapped, the better for devolution. You must stand for something in life and more so in politics.

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- The writer is an Advocate of the High Court of Kenya

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