OMTATAH: Removal of governors must be well-founded in law

The process of removing a governor must be pretty stringent and clearly laid out

In Summary
  • The threshold for the removal of a county 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.
Busia Senator Okiya Omtata follows proceedings during the hearing of the Meru Governor impeachment case at the senate chambers on Tuesday, December, 27 2022.
Busia Senator Okiya Omtata follows proceedings during the hearing of the Meru Governor impeachment case at the senate chambers on Tuesday, December, 27 2022.
Image: EZEKIEL AMING'A

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 December 30, 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 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 Babayao, and Anne Mumbi 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 county governor can be removed from or retained in an office on the whims of those who control power is a lacuna in the law that must be cured to protect devolution.

Articles 181(2) and 200(1) & (2)(c) of the Constitution require Parliament to enact legislation providing for the procedure of removal of a county governor/deputy governor on any of the grounds specified in Article 181(1)(a-c).

Whereas, as observed by the Supreme Court in the case of Sonko - v - County Assembly of Nairobi City and 10 Others (Petition 11 (E008) of 2022 (2022) KESC 76 (KLR), the outcome of impeachment or removal from office as regards the President and a county governor, respectively, are the same, the constitutional and statutory bases for doing so are distinctly different.

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 county 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 county 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 county 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 county 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 it 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 the 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.

If the framers of the Constitution had intended the two processes to be exactly the same in every instance, nothing could have been easier than simply stating so as they did in Article 150(2) for the Deputy President, thus: “(2) The provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.”

Article 1(1) of the Constitution declares that all sovereign power belongs to the people of Kenya and shall only be exercised in accordance with the Constitution.

When, as provided by Article 1(2), this sovereign power is exercised through the people’s democratically elected representatives, including a county governor, any truncation of that mandate, is only valid when undertaken in a process enjoying, as a minimum, the same safeguards as apply to judicial processes.

Article 38(3)(c) of the Constitution entrenches the right to hold office by a person who has been elected.

This right is ring-fenced by other rights, including the right to a fair trial under Article 25(c), which cannot be limited; the right not to be discriminated under Article 27; the right to fair administrative action under Article 47; and the right, under Article 50(1), to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Under Article 24 of the Constitution, these rights can be limited by legislation, but they cannot be abrogated.

Where Parliament chooses to enact a law limiting any rights and fundamental freedoms, it must clearly and specifically express the intention to limit those rights and the nature and extent of the limitation and state the relation between the limitation and its purpose and whether there are less restrictive means to achieve that purpose.

And such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Removal from public office by impeachment (i.e.by accusation by a legislative body) in a purely political process, without any modicum of a fair trial and conviction before an impartial and independent tribunal, is ONLY provided for in three instances, being: under Article 145 of the Constitution for the President, under Article 150(1)(b) & (2) for the Deputy President, and under Article 152(6-10) for a Cabinet Secretary.

Article 131(1)(b) of the Constitution sets the three officeholders apart from any other public official by providing that the President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries.

And it is to contain that immense power they have, by controlling the executive authority of the Republic, that the framers of the Constitution deliberately provided for their removal, except on medical grounds, through purely political means where they don’t benefit from being tried before an impartial and independent body.

Nowhere else does the Constitution exclusively provide for legislators, and not members of the public, to both accuse public officials and then adjudicate the process of investigating and substantiating the grounds for their removal from office.

Hence, since the Constitution does not, expressly or implicitly, provide for the removal of any other public officials by such means exposed political machinations, where the accused are denied the right to be heard and adjudicated by an impartial and independent body within the removal process, Parliament has no capacity to make a law which subjects ordinary public servants like county governors to the unique removal process that the Constitution only applies to that special group of public officers who control the executive power of the Republic.

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.

Specifically, the removal of the Director of Public Prosecutions under Article 158; the removal of a judge under Article 168; and the removal of a member of a constitutional commission or the holder of an independent office under Article 251 are not via a political process without trial and conviction by an impartial and independent body, though the grounds for removal are, in principle (especially under Article 251), identical to those for impeaching the President, the Deputy President, and a Cabinet Secretary.

It is also instructive that these removals, unlike those of the President, Deputy President and Cabinet Secretary, are not initiated by legislators; they are initiated by ordinary members of the public (save for the removal of judges where the Judicial Service Commission may also initiate a removal), validated by the legislature, and then adjudicated by an impartial and independent body.

And because of the far-reaching consequences of impeachment, including the permanent loss of the constitutional right protected under Article 38 (3)(c), any statutory process leading to such a drastic outcome must itself be unimpeachable.

Over and above that, Article 236(b) of the Constitution provides categorically that a public officer shall not be “dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.”

And, unless stated otherwise in the Constitution itself, the irreducible minimum of ‘due process of law’ is to ensure that one is subjected to a fair trial before an impartial and independent tribunal.

Since Article 236 lies outside the Bill of Rights, Parliament has no mechanism for limiting it.

Article 24, which allows the legislature to limit rights and fundamental freedoms through legislation, does not affect provisions of the Constitution which lie outside the Bill of Rights.

It is only the Constitution itself, by expressly stating otherwise, which can oust Article 236(b) as it does by expressly prescribing for the removal of the President, the Deputy President, and a Cabinet Secretary through a political trial (impeachment) and not by trial before an independent and impartial tribunal or body.

The ordinary legislation anticipated under Article 181(2) cannot oust Article 236(b) of the Constitution to deny a county governor the right to a fair trial before an impartial and independent tribunal.

Hence, in order to impeach a county governor using the procedure for impeaching the President, Article 181(2) of the Constitution has to be amended to expressly institute a purely political trial similar to that under Articles 145, 150(1)(b) & (2), and 152(6-10).

Only such an amendment can oust the right to a fair trial under Article 25(c), the right to fair administrative action under Article 47, right to be heard fairly before an independent and impartial tribunal or body pursuant to 150(1)(b) & (2), and the protection of public officers under Article 236(b).

It cannot be overstated that if the framers of the Constitution wished for a governor to be removed by purely political means, nothing would have been easier than simply stating so, as they did in Articles 145, 150(1)(b) & (2), and 152(6-10).

Parliament cannot, through an ordinary piece of legislation enacted pursuant to Article 181(2) of the Constitution, circumvent constitutional procedures to provide for the removal of a county governor or a deputy governor through a purely partisan political trial by simply cutting, adapting, and pasting into legislation the impeachment procedure in Articles 145, 150(1)(b) & (2), or 152(6-10).

Parliament’s powers to make law are limited by the Constitution which establishes the legislature to exercise delegated power (Articles 1 and 94(1)); places an obligation on every person, including its members individually, to respect, uphold and defend the Constitution (Article 3(1)); requires the legislature and legislators to abide by the national values and principles of governance (Article 10); imposes on the legislature and legislators the duty to uphold the Bill of Rights (Articles 20, 21, and 24); and requires the legislature to perform its functions strictly in accordance/conformity with the Constitution (Articles 2(1-3), 93(2), and 94(4)), and expressly invalidates laws which contravene the Constitution (Article 2(4)).

Parliament cannot extinguish the rights of elected governors and deputy governors under Articles 38(3)(c), 25(c), 50(1) and 27 by invoking Article 24, which only allows the legislature to limit but not abrogate rights in the Bill of Rights through legislation.

Only the Constitution can abrogate those rights where it clearly extinguishes them.

Contrary to the above, vide Section 33(1-8) of the County Governments Act (No. 17 of 2012), Parliament unconstitutionally purported to amend the Constitution by replacing Article 181(2) of the Constitution with Article 145, so that an accused county governor or deputy governor can be removed through a partisan political trial reserved for the President and the Deputy President.

And by so doing, Parliament purports to extinguish the following rights which a county governor has under the Bill of Rights: the right to a fair trial before an independent and impartial tribunal; the right not to be discriminated against; the right to fair administrative action; and the right to due process of law.

The Section further limits the sovereign power of the people by not providing a removal process that meets the purposes, values and principles of the Constitution.

Further, section 33(1-8) is discriminatory against people who hold the office of a county governor or deputy governor to the extent that it terminates their trial prematurely at the Senate instead of handing the impeachment motion upheld by the House through a political process, over to an impartial arbiter in the institution of the Judiciary for the appointment of an impartial and independent tribunal to hear and determine with finality the case against an accused county governor or deputy governor.

It is also discriminatory when the vote threshold for removing a county governor in the Senate is compared to that for impeaching the President.

Under Article 145, a minimum of two-thirds majority threshold is set both for approving the impeachment motion in the National Assembly (being 232 of 349 members) and for upholding the impeachment in the Senate (32 of the 47 county delegations).

But for a governor, where a two-thirds majority is required to approve the impeachment motion in a county assembly, the threshold for upholding the impeachment under Section 33(7) is a simple majority of all the county delegations of the Senate, being only 24 votes.

Finally, it is discriminatory that, despite the fact that a governor, MP and MCA are all elected through the same process, and despite the striking similarity in the grounds for their removal from office, there is a clear disparity in the process for their removal.

According to sections 45 to 48 of the Elections Act (No. 24 of 2011), which was enacted by Parliament, to recall an MP or an MCA, the process can only be initiated upon a judgment by the High Court confirming the grounds or allegations against the individual, and can also only arise 2 years after the election and not later than 1 year before the next general election and it can only be done once during the term of that member.

On the contrary, a governor does not benefit from a judicial process and can be impeached as many times as the county assembly wishes provided the motions are filed in three-month intervals of each other within the five-year tenure.

The other limitation in Section 33(1-8) of the County Governments Act is that Parliament simply regurgitates Article 145 of the Constitution without unbundling the grounds for removal under Article 181(2). At the very least, Parliament should set the thresholds to be met for each ground before a county governor is removed from office.

The law must clearly state what the is meant by (a)gross violation of this Constitution or any other law; (b) where there are serious reasons for believing that the county governor has committed a crime under national or international law; (c) abuse of office or gross misconduct; or (d) physical or mental incapacity to perform the functions of the office of county governor.

Consequently, Section 33(1-8) of the County Governments Act is unconstitutional and, therefore, invalid, null and void to the extent that it contravenes the Constitution, it has no appropriate checks and balances, and it allows members of county assemblies which can raise the numbers, and working in cahoots with like-minded senators, to impeach and remove governors from office for private political reasons and not in the public interest.

Since the Constitution does not expressly provide for it, the process of removing a governor or a public official from office cannot be left wholly to the whims of partisan members of county assemblies and equally partisan senators in a legal framework where, contrary to the principles of natural justice, the Bill of Rights and express provisions of the Constitution, the politicians are the judge, jury and executioner.

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 from 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 therefore 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 composition of the tribunal could be similar to those for removing a judge, the DPP, and members of constitutional commissions and independent office holders. And the President, who under Article 192 has the power to suspend a county government, could suspend the governor on half pay upon the appointment of the Tribunal until it makes its binding verdict.

For comparison, it is instructive that Chapter 6, Part 2, Section 188 of the Constitution of the Federal Republic of Nigeria, which has a presidential system like Kenya, where both the President and the governor are elected directly through a popular vote, expressly provides for the removal of a State governor or deputy governor through an impeachment process that also provides for a fair trial before an impartial and independent tribunal.

The motion to impeach is introduced with the support of at least one-third of the State Assembly Members, but it must be approved by at least a two-thirds majority of the assembly to proceed.

Where approved, the accused is put on a trial (for conviction or acquittal) before a seven-member impartial and independent panel composed of persons of unquestionable integrity, who are not members of any public service, legislative house or political party appointed by the Chief Judge of the State (who would be the Chief Justice in our case).

Where the panel reports to the assembly that the allegations against the accused officeholder have not been proven, no further proceedings are taken in respect of the matter.

But where the tribunal reports that the allegations were proven, a resolution of the assembly supported by not less than a two-thirds majority of all its members is required to adopt the report and remove the individual from office with finality.

No proceedings or determination of the panel or of the assembly or any matter relating to such proceedings or determination can be challenged in a court of law.

Article 65 of the Constitution of the Republic of South Korea (1948 rev. 1987) provides impeachment of the President and other public officials by the National Assembly, with clear thresholds.

Any person against whom a motion for impeachment has been passed shall be suspended from exercising his or her power until the impeachment has been adjudicated by the Constitutional Court.

Vide Section 49 of the Constitutional Court Act, the impeachment commissioner (i.e., the Chairperson of the Legislation and Justice Committee of the National Assembly) requests adjudication by presenting to the Constitutional Court an authentic copy of the written impeachment resolution and may examine the respondent in the oral argument.

Where a request for impeachment is well-grounded, the Constitutional Court shall pronounce a decision that the respondent shall be removed from the relevant public office.

Okiya Omtatah is the current Senator, Busia

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