PROTECTING DEVOLUTION

Impeachment safeguards key to preventing abuse, partisan politics

The removal from office has the potential to ruin a person’s career and reputation.

In Summary

• Impeachment is one of the avenues the 2010 Constitution provided to discipline public officials to maintain confidence in political process by checking gross abuse of power and corruption.

• The provision seeks to foster accountable exercise of power by setting the threshold for removal of unfit public officials.

Kirinyaga Governor Anne Waiguru talks during her impeachment hearing at the Senate on June 23.Impeachment charges dismissed.
IMPEACHMENT QUASHED: Kirinyaga Governor Anne Waiguru talks during her impeachment hearing at the Senate on June 23.Impeachment charges dismissed.
Image: EZEKIEL AMING'A

The devolved system of governance was introduced by the  2010 Constitution to remedy the imbalance in resource allocation, regional development inequalities and marginalisation of communities.

Devolution sought to bring power close to the people at the grassroots level, promote accountability, give them the power of self-governance, facilitate public participation and enhance checks and balances and separation of powers.

Executive authority at the county level is vested in the county Executive committee chaired by the governor to whom members are accountable.

In June, the Kirinyaga Assembly speaker forwarded to the Senate a resolution for the impeachment of Governor Anne Waiguru after MCAs voted to remove her. They cited  abuse of office, violation of the Constitution and other laws, [as well as major financial irregularities in tendering, personal self-enrichment and skewed promotions to favour herself.] 

Impeachment is one of the avenues the 2010 Constitution provided to discipline public officials to maintain confidence in the political process by checking gross abuse of power and corruption.

The provision seeks to foster accountable exercise of power by setting the threshold for removal of unfit public officials. Among the grounds for removal from office of a governor are gross violation of the Constitution and other laws, commission of a crime at national or international level, abuse of office/gross misconduct and physical or mental incapacity.

In the view of the High Court, to establish a gross violation, what is alleged must first be serious and substantially weighty. Secondly, there must be a nexus between the governor and the alleged violation, which is proof of individual personal wrongdoing with knowledge, consent or connivance of the person charged.

Third, the charges and particulars must disclose a gross violation of the Constitution or other law. Lastly, the charges must be framed with a degree of precision to show the violated articles or sub-articles of the Constitution or law. The standard of proof is higher than the balance of probabilities but below reasonable doubt.

Notably, the removal from office has the potential to ruin a person’s career and reputation. In this regard, there are adequate safeguards against legislative abuse and use of impeachment powers to attain partisan political ends.

The related laws place a responsibility on the County Assembly to facilitate public participation in this process.

The assembly thus has a duty to frame the charges and initiate the motion for removal as outlined in Section 33 the County Governments Act, 2012. The motion must be adopted by a two-thirds majority of the MCAs. 

If and when this threshold is met, the county speaker forwards the resolution to the Senate for hearing and determination. 

In the case of Governor Waiguru, it was held that that meaningful public participation must be undertaken in the impeachment. The limits on the power of impeachment are because governors are elected by sovereign people in exercise of their political right to vote.

The proceedings for impeachment are quasi-judicial and subject to the jurisdiction of the High Court.  The Judiciary exercises great vigilance in its supervisory role to ensure predictability, consistency, reliability, integrity, coherence and flexibility.

The doctrine of separation of powers does not inhibit the court’s jurisdiction rather, it strengthens checks and balances on actions taken by government organs.

The province of the court is, however, limited to decide on the rights of individuals, not how the County Assembly and the Senate exercise their discretion. The court only checks compliance with the Constitution and law, it does not sit on appeal regarding the correctness of the decision of  Parliament as it enjoys immunity from court decisions only when their actions are in accordance with the letter and spirit of the Constitution.

In the case of Martin Wambora it was held that the process of impeachment was a nullity and undermined the rule of law because the Embu county speaker disobeyed a valid court order.

Bulinda is a lawyer