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POLITICS VS LAW

Waiguru removal: Why we need impeachment procedure bill

This will clear the cobwebs on the pathway to be followed for a removal to take place away from bare knuckle political contestations

In Summary

• Contestations on whether the Senate would go the plenary or the committee way to prosecute the case purely based on political hubris and grand standing rather than material facts.

• Due to the high politics involved in the impeachment, it is important to look at the merits of the committee versus the plenary way.

Kirinyaga Governor Anne Waiguru.
Kirinyaga Governor Anne Waiguru.
Image: FILE

Kenyans were this week treated to drama in the Senate, as emotions ran high on the impeachment of Kirinyaga Governor Anne Waiguru.

Contestations on whether the Senate would go the plenary or the committee way to prosecute the case were purely based on political hubris and grand standing rather than material facts.

To begin with, it is a matter of mundane procedure that any issue brought to the floor of the House is referred to a relevant committee. In the case of an issue that cuts across several of them, this is usually referred to joint sessions of those committees, or a special ad-hoc one is constituted for that sole purpose.

In the case of an impeachment, the devolution committee would naturally be the one to do so. However, it has now become the tradition of the Senate that a select committee be constituted for that purpose.

Due to the high politics involved in the impeachment, it is important to look at the merits of the committee versus the plenary way. To begin with, the constitution of a committee very much depends on who gets appointed, usually based on political allegiance.

In the current scenario, Jubilee Coalition has the upper hand since out of 11 members, it sponsors six, while Nasa sponsors five. With the advent of the handshake and the consequent widening fissures within Jubilee, a combination of the ‘handshake’ senators provide for a super majority in such a committee.

The plenary option requires the marshalling of troops by all shades of political opinion and portends a broader population of opinion on the subject matter. The challenge though is the presentation of the evidence and cross examination of witnesses, with 67 senators having a go at the issues at hand. The plenary way, therefore, is more dramatic, and allows for settling of political scores in the full glare of the media. It is thus more interesting and illuminating to the members of the public.

The committee way is far neater as it gives an opportunity to senators to thoroughly interrogate the matters at hand and to properly cross examine the witnesses. However, the report must be tabled on the floor of the House, debated, and its recommendations adopted or rejected.

Nevertheless, there are different courts that have a say on this public matter. The first is the political court. Whether a political office holder should be subjected to a political process, and that his/her accusations are adjudged by fellow politicians is a dicey matter altogether. The second court is the legal court, whose mandate rests with the Judiciary, and the third court is the court of public opinion, which is undefined and is usually driven by the popular sentiments as propagated by members of the fourth estate.

Parliament in its standing orders confers its committees powers of the High Court in summoning witnesses and adducing evidence as well. That such a process of interrogation is expected to be as judicious as a court of law brings to the fore the soft underbelly of the thin line between political versus legal matters.

You cannot resolve a political matter purely on legal terms since in the academy, we use logic to arrive at conclusion, while in politics, one is taught to use emotions and facts on the ground to arrive at a decision — the very essence of elective versus appointive offices.

The political method is thus materially different from the legal method. Such is the dichotomy that a political court such as the Senate plenary must be seized off in its deliberations, considering the ever shifting personality rather than issue-based politics.

As a matter of precedence, it was wise for Justice Weldon Korir to dismiss Waiguru’s pleading that the county assembly be injuncted from its proceeding due to procedural objections. This is because the political court must finish its work before the legal court can take up the matter. It was thus wrong for the magistrate in Kirinyaga to purport to stop the county assembly from conducting its legislative proceedings ab initio. Any acts of omission or commission on the part of the county assembly and the Senate will form material evidence in a court of law in terms of the procedure that has been followed thus far, if any of the parties decide to follow this route.

In spite of the above, elements of accountability at the state level are very thin at the sub-state (county) level, leaving oversight measures to impeachment as an only and ultimate recourse for abuse of office or settling of political scores. The casual manner in which this is happening begs the question as to how we can strengthen devolution, by enhancing oversight in the counties.

All of the above necessitate the need for a proper impeachment procedure law that clears the cobwebs on the pathway to be followed for a removal to take place away from bare knuckle political contestations that we are currently witnessing.