Senator Thangwa tables Bill seeking to raise threshold for impeaching governors

Meru Governor Kawira Mwangaza is consoled by her husband Murega Baichu after she survived her second impeachment by the Senate on November 8, 2023, at the Parliament buildings, in Nairobi. [Elvis Ogina, Standard]

It will not be easy to impeach governors, county assembly Speakers, deputy governors, county secretaries and County Executive Committee members if a Bill by Kiambu Senator Karungo Thangwa is passed by the Senate.

Thangwa through the County Government (State Officer's Removal from Office) Procedure Bill 2023 which is before the Senate seeks to put in place a legal framework for the removal from office by way of impeachment of the county government officials.

The Kiambu Senator states that, unlike previous impeachment proceedings, the Bill provides that a person may apply to the High Court for review to be done within 14 days of the decision of the Senate or county assembly and the matter shall be heard and determined within 30 days.

“This Bill committed to the Senate Justice and Legal Affairs Committee provides that a motion by a county assembly for the removal of the governor by impeachment may only be introduced in the assembly after the expiry of 90 days from the date of the vote by the Senate,” said Thangwa.

The Bill states that appeal of the High Court decision in the Court of Appeal or the Supreme Court shall be filed within 14 days and be heard and determined within 45 days.

The proposed law seeks to give a lifeline to governors, deputy governors and county assembly Speakers who have been impeached from office by seeking judicial review.

The removal of a governor by impeachment may be introduced in the county assembly if it relates to particulars other than those which formed subject of previous impeachment proceedings with a Member of County Assembly supported by at least a quarter of all members to move a motion for the investigation of the governor’s physical or mental capacity to perform duties.

Thangwa said an MCA shall submit to the Clerk of the County Assembly, the impeachment motion together with a list of the members who support it and the Clerk shall within two days of receipt of the proposed motion submit it to the Speaker.

“If passed into law, an allegation shall be considered to be substantiated if it is established and rises to the threshold contemplated in the Constitution and the Act, with the Bill further proposing that if the Speaker of the County Assembly fails to respond within two days of receiving the motion as required, the motion shall be taken to have been approved,” said Thangwa.

The Bill further proposes that within seven days of receiving notice of the resolution from the Speaker of a county assembly, the Chief Justice shall appoint a tribunal consisting of an Advocate of the High Court nominated by the Law Society of Kenya (LSK).

The Chief Justice will also appoint three persons who are qualified to practice medicine under the laws of Kenya and nominated by the Kenya Medical Practitioners and Dentist Council (KMPDC) and one person nominated by the Council of Governors (CoG).

However, if the Chief Justice is unable to appoint a tribunal, the Deputy Chief Justice shall appoint such a tribunal to inquire into the governor’s physical or mental capacity to perform the functions of office and within 14 days of its appointment, report findings to the Chief Justice and to the Speaker of the county assembly.

“The report of the tribunal shall be final and not subject to appeal and if the tribunal reports that the governor is capable of performing the functions of the office, the Speaker of the county assembly shall so announce in the county assembly,” reads the Bill.

However, if the tribunal reports that the governor is incapable of performing the function of the office, the county assembly shall give the governor an opportunity to be heard before vote on whether to ratify the report.

The governor shall have the right to appear and be represented before the Senate, a Special Committee of the Senate, the county assembly or the tribunal as the case may be.

The Bill provides that the procedure for the removal from office of a governor shall with necessary modifications, apply to the removal from office of a deputy governor.

The proposed law provides that an MCA supported by at least a third of the members may propose a motion requiring the governor to dismiss a County Executive Committee Member (CEC) over incompetence, abuse of office, gross misconduct and gross violation of the Constitution.

“The county assembly shall be required to appoint a Special committee of not more than nine of its members who shall investigate the matter and within 14 days report to the county assembly on whether or not it finds the particulars of the allegations against the CEC to have been substantiated,” said Thangwa.

The Bill states that the CEC may be removed from office on grounds of physical or mental incapacity or is convicted of an offense punishable by imprisonment for at least six months.

The proposed law further proposes that a Member of the County Assembly supported by at least a third of the members may move a motion for the removal of the Speaker or a Deputy Speaker over incompetence, abuse of office, gross misconduct and gross violation of the Constitution.

The Speaker or the Deputy Speaker may be removed from office on grounds of physical or mental incapacity or is convicted of an offense punishable by imprisonment for at least six months.

“The Speaker or Deputy Speaker whose motion for removal from office is passed shall not perform any of the functions of the office pending the determination of the county assembly If the Office of the County Speaker falls vacant at any time before the expiry of the term of the county assembly, no business shall be transacted until the election of a new Speaker,” states the Bill.

The Bill states that if a motion for the removal from office of a Speaker or Deputy Speaker is passed by a simple majority, the Senate shall appoint a special committee of not more than nine of its members to investigate the matter.

The proposed legislation also expands the timeline within which the committee is to consider the matter from 10 days to 14 days, and the report is to be considered by the House and a vote taken on whether or not the charges are substantiated.