When Jubilee party members were axed and sought legal redress amid the row between President Uhuru Kenyatta and his deputy William Ruto, their pleas drooped. The lawyers and political commentators made it clear that the law subsists on washing the feet of politics — that issues politics cannot find solutions from the courts.
Verily, I say unto members of county assemblies (MCAs), they can’t impeach a governor if the grounds do not meet political thresholds. Do not be deceived; Kiambu Governor Ferdinand Waititu’s impeachment was done at sovereign political balconies.
Indubitably, the 47 county governors are big fish in the Kenyan political ocean and they need not apologise for that. Let me explain this using a culinary framework. Eating fish can be approached from either the tail or the head. If you start with the tail, you get a false taste that makes the head taste horrible, thus leaving the good part of it on the plate.
The best procedure to eat fish is to crush the skull, chew the gills, and usurp the brains and eyeballs. This approach stimulates a craving for the ribs, the fins and the tail. The MCAs from the political plains have no teeth qualified to crush the heads of the governors who hails from political mountain tops. Small fish cannot swallow the big fish —without doubt, the lesser is blessed by the greater.
Before county assemblies plan their boss impeachment motions, they must ensure the governor is politically impeachable by the executive, the senate, the parliament, the council of governors, and has no court order blocking the ouster because Judiciary honours its word. Unless a governor is impeachable from these circles, leave the chaperons alone. That’s the pain of political protocol.
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Are MCAs then to let corrupt governors free so that political grace may abide? I’m not sure! But I’m fully persuaded that the grounds provided in Article 181 of the constitution under which the county assembly can impeach a governor are pure poetry in form and spirit. Note also that the guidelines of section 33 of the County Governments Act that they follow to do so are dramaturgical guides. The constitution is an anthology of chapters crafted by a committee of experts. I have explanations for these.
So far, we have had seven impeachment attempts and of those, only one was successful — the Waititu ouster. It started with my Governor Martin Wambora in 2014. The worst attempt was passed by the senate, but was overturned by the High Court saying it was done in violation of the court order in the County Assembly. In other two times, Wambora was saved by the Court of Appeal for lack of clear evidence. Governors Mwangi wa Iria of Murang’a, Granton Samboja of Taita Taveta, Nderitu Gachagua of Nyeri, Paul Chepkwony of Kericho and lately Anne Waiguru of Kirinyaga have survived impeachment motions in like manner. The grounds under which county assemblies attempt to oust governors are violating the public procurement and asset disposal act, 2015; public procurement acts, and the public finance management act of 2012; gross misconduct and abuse of office, violating the law on recruiting personnel; flouting due process regarding public and private partnerships; misuse of county cash and poor debt handling. In all these, the impeachments are defeated for not meeting constitutional thresholds and lack of evidence to substantiate allegations.
Moreover, the MCAs have not been genuine going by most governors’ defence during hearings. The governors have cited political witch-hunt in their impeachments; some raising concerns that MCAs try to arm-twist them to accent to law Bills meant to benefit members of county assemblies. For example in Embu, there were allegations that a politician from Mbeere North took MCAs to a Mombasa trip and bribed them to impeach governor Wambora.
Thirst for money?
The decelerated Kitui impeachment motion against Governor Kaluki Ngilu was supposedly sponsored by Kalonzo Musyoka. Isiolo Governor Mohamed Kuti has accused his rivals eyeing the 2022 governorship of having their hands in planning impeachment against him.
Governor Patrick Khaemba of Trans Nzoia has faulted his MCAs’ thirst for money, and Wycliffe Wangamati of Bungoma cites Ford-Kenya politics as motivations for his ouster bid.
Others like Salim Mvurya of Kwale and Wilber Ottichilo of Vihiga are battling nightmares of impeachment with references of malice from MCAs. With blood in their hands, members of country assemblies will always be weighed down in their attempt to sanitise county governments.
What can I say then? The constitution must place the county bosses at the centre of the county procurement processes and the pulse. This will dissolve the smokescreen provided by the constitution where the county bosses can meddle with procurement and county coffers using borrowed hands. Otherwise, as things are, governors can only be impeached politically.
-The writer is a political economist.