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VAS

Impeachments are often driven by self-interest

KAMOTHO WAIGANJO
By Kamotho Waiganjo | September 18th 2016
The dismissal by the Senate of the impeachment proceedings against Nyeri Governor Nderitu Gachagua is an important triumph for the rule of law in devolved governments.PHOTO: COURTESY

The dismissal by the Senate of the impeachment proceedings against Nyeri Governor Nderitu Gachagua is an important triumph for the rule of law in devolved governments.

This dismissal follows a trend set by the Senate in the Kericho and Murang’a Governors’ impeachments and reinforces the importance of the Senate as an oversight House over County Governments.

 Let me at the outset affirm the critical oversight role that the Constitution allocates to County Assemblies over the County Executive. Critically one must recognise that the ultimate weapon of oversight is the ability to censure and ultimately, to dismiss. Consequently, the law gives the County Assemblies the power to dismiss both the County Executive Committee members and the Governor.

In the last four years of devolved government, there have been numerous attempts at removal of these Executives. While little is heard of removals of Executive Committee members, since it occurs quietly outside the glare of the public and without the necessity of Senate approval, the reality is that until the High Court stopped the process of dismissals, scores of CEC members had been sent packing by County Assemblies.

What is amusing is that in almost all instances, it was the CEC members for Finance that got the sack. One notes a curious coincidence that the Finance CEC member is the one who invariably handles most matters relating to finance which many MCAs have an interest in. Indeed in many instances, CEC members for Finance were routinely sacked for delaying payments of allowances to MCAs. In a fair process, one would have expected those in service related departments to get most sack threats since MCAs exist primarily to ensure that County Executives provide services to the people. That was not the case.

I accept that the above is a broad-brush generalisation and that there are some legitimate situations in which MCAs sacked CECs but in most cases, their firing had little to do with the welfare of the county.

Fortunately, the High Court stopped the process of CEC dismissals on the basis that the process set out in the County Government Act made the MCAs accusers, prosecutors and judges and was thereby unconstitutional.

Unfortunately there have been no amendments to correct the anomaly identified by the court meaning that the County Assemblies remain neutered in respect of their powers to dismiss CECs. While the previous process was wrong and prone to abuse, the current lacuna is worse since it denies the County Assemblies a power granted to them by the Constitution.

Parliament must urgently amend the Act to set out a fair and just process through which County Assemblies can effectively censure CEC members. With respect to Governors, it is also clear that in many instances the reasons given for impeachment have little to do with gross violation of the law as required by the Constitution

 A case like the Nyeri impeachment was laughable. Despite the high threshold set by the Constitution, which requires not just violations but gross violations, the accusations against the Governor ranged from routine accounting entry issues to matters of procurement process. One would have expected that by the time the Governor was being led to the impeachment slaughterhouse scores of officers under him would have been censured as the matters complained of were acts carried out by officers. One would have expected a clear connection to be made of the personal culpability of the Governor in respect of each of the felonies complained of. It is not enough to identify defaults in the county, the Governors’ personal culpability needed to be established.

 This was not done thus denying the county a proper interrogation of the faults, if any, of the Governor. Fortunately the Senate’s reading of the letter and spirit of the Constitution was right and one must especially congratulate Nyeri Senator Mutahi Kagwe for his statesmanlike handling of this matter.

What lessons are to be learnt from these failed impeachments? It is that while the County Assemblies must carry out their oversight role diligently, the impeachment weapon, being an affront on the democratic will of the people, must be used sparingly. It must also always accord with the letter and spirit of the Constitution and not the political whims of the MCAs.

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