Principles of natural justice, law must be upheld in governor ouster

Meru County Governor Kawira Mwangaza before the Senate, Nairobi, on December 28, 2023. [ Elvis Ogina, Standard] Impeachment is a unique process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct and/or inability to perform functions efficiently. Depending on the laws of a country, it may be a purely political process where the accused is not held to account before an impartial and independent body, or one involving both politicians and an independent tribunal. The acquittal of the Meru County Governor on Friday, 30th December 2022, from her impeachment by the Meru County Assembly was only possible because either those who control executive power in the Republic did not meddle in the affairs of the Senate, or they intervened to get that particular outcome. And it was totally unsettling to see some Senators openly take sides, including by celebrating openly with the acquitted governor, yet they were the adjudicators in the dispute. Further, going by how some previous impeachments were shambolically handled by a remote-controlled Senate, such as those of governors Mike Mbuvi Sonko, Ferdinand Waititu, and Anne Waiguru, the House can just be a conduit for punishing or protecting accused governors according to the will of those in power. The fact that a governor can be removed from or retained in office on the whims of those who control power is a lacuna in the law that must be cured to protect devolution. Removal from office of a county governor on any of the grounds specified under Article 181(1) (a - c) of the Constitution is a grave matter as it involves overturning the sovereign will of the people as expressed in a democratic election. Even more profoundly, the removal attracts an indefinite prohibition from ever holding a State and/or public office. In particular, it extinguishes for all time the affected person's right under Article 38(3)(c) to vie for and, where elected, to hold public office. The constitutional bar that must be cleared for the removal from office of a governor is high. The Constitution requires that the removal must be well-founded in law. Removal or threats of removal from office must not be used as the sword of Damocles, hanging over the heads of governors as a threat to induce or compel them to act against their constitutional mandate. Due to the severity of the issue, the process of removing a governor must be pretty stringent and clearly laid out in a constitutionally sound law, which strictly conforms to the Bill of Rights and other provisions of Kenya's very prescriptive Constitution. The threshold for the removal of a governor or deputy governor on any of the grounds specified in Article 181(1)(a-c) must be objectively established by an impartial and independent body. It is not simply a matter of numbers in the County Assembly. It is not a vote of no confidence that has no specific grounds anchored in law, it is not a political decision involving no disgrace, and which needs a simple majority to vote in favour, leading to a forced resignation. And Parliament cannot purport to override provisions of the Constitution under the guise of legislating the procedure for removal under Articles 181(2) and 200(1) & (2)(c) of the Constitution. Unlike impeachment of the President under Article 145 of the Constitution, which is insulated from any challenge, the process of removal from office of a county governor must comply with all provisions of the Constitution. The removal of officers, except the President, the Deputy President and the Cabinet Secretary, must involve a formal trial and a finding of culpability to the required standard, before an impartial and independent tribunal. Since the removal of a governor is the consequence of a successful accusation against an individual, the right to administrative justice and a fair hearing must all accrue to an accused governor to prevent removals becoming a tool for settling political scores, or even for extortion. Hence, Parliament should amend Section 33(1-8) of the Act to align it with the Constitution by eliminating the purely political procedure and replacing therefor a process which culminates, after evaluation and approval of the removal motion by a county assembly and concurrence by the Senate, in a fair trial before an impartial and independent tribunal. Ideally, such a motion for the removal of a governor should be tabled in a county assembly supported by at least one-third of the House membership. Once approved by at least two-thirds of all members of the assembly, the same should get the concurrence of the Senate before it can be transmitted to the Chief Justice to appoint an independent and impartial tribunal to investigate the matter expeditiously, report on the facts, and make a binding recommendation to the President, who shall immediately act in accordance with the recommendations. -The writer is the Senator of Busia

Principles of natural justice, law must be upheld in governor ouster

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