GHAI: How (not) to impeach a governor

Removing a governor has proved not easy. The effort to remove a governor has again failed recently – in the case of Governor Kawira Mwangaza of Meru.

I don’t want to go into details of that case. I have read the findings of the Senate and some of the details in the Memorandum of Impeachment. It does seem that there was some unwise behaviour, including some rather immature behaviour, within the county government. And it is to be hoped that the sensible words about rethinking behaviour in future and trying to work in a more collaborative manner will be heeded.

BUT WHAT IS IMPEACHMENT?

It is important to realise that the word “impeach” does not mean to “remove from office”. Centuries ago, its meanings included to hinder, but now you are likely to encounter it only as we are using it here, or in a phrase like “she was of unimpeachable honesty” meaning honesty with which no fault could be found.

The expression originated in the UK. There, “Impeachment” meant something close to “prosecution” and this was conducted by the House of Commons before the House of Lords as the court. The accused were usually ministers appointed by the Monarch. The most famous case was the trial of a governor general of India. It lasted for seven years and he was found not guilty.

The system was adopted in the United States, and it is still used – including for judges, presidents and governors. The House of Representatives has, in the last 200 years, impeached 15 judges —eight of whom were convicted in the Senate.

The numbers of governors impeached are also 15 and eight convicted, most recently a corrupt Governor of Illinois removed in 2009.

Here, the county assembly finds fault and does so before the Senate. The county assembly does not decide the issue – that is a matter for the Senate. The Senate is not there to decide “do we agree with the county assembly or not?”.

But, “Has the county assembly convinced us, by argument and evidence, that the governor has committed such a serious wrong?”.

Martha Karua said a county assembly must not be the prosecutor and the judge. But it is not – it is the prosecutor and the Senate is the judge.

Kenyan counties (or rather their assemblies) have already impeached eight governors (one of them twice). In three cases, they have succeeded. In the case of Governor Martin Wambora of Embu, it was the court and not the Senate that saved him.

The American procedure for governors depends on the state’s constitution and law, not on the national constitutional. But generally, the process is similar: The grounds are often expressed as “High crimes or misdemeanors or malfeasance in office”, and the process involves the state’s Lower House prosecuting before its Upper House.

Here, a county assembly takes the case to the Senate and it must be for (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.

I won’t go into the niceties of unpacking those phrases, but you can see that in the US, they must have similar difficulties of interpretation.

The choice was made to involve the Senate no doubt because under our Constitution, the Senate has a special role of protecting the system of devolution – not individual counties or their governors, though. Had the matter been left to county assemblies, one wonders what would have happened. Clearly more cases would have ended up in court

HOW TO IMPROVE THE SITUATION?

The process is rather a weak one, and could be improved.

I am not so concerned about understanding the meaning of phrases like “gross misconduct”. The Senate is already developing what we might call jurisprudence on the matter. In this they have the help of the courts. In one Wambora case, the Court of Appeal said, it “includes violation of the values and principles enshrined under Article 10 of the Constitution and violation of Chapter Six (Leadership and integrity) of the Constitution; or intentional and/or persistent violation of any Article of the Constitution; or intentional and blatant or persistent violation of the provisions of any other law.”

A Nigerian court said, “It … means generally in the context atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious and shocking. All these words express some extreme negative conduct. … Whether a conduct is gross or not will depend on the matter as exposed by the facts.”

This is rather over-the-top, but you get the idea? Not ordinary stupidity or arrogance, but behaviour deserving, even necessitating, removal from office with the serious risk of never being allowed to hold state office again.

I would suggest that the affair needs to be treated more like a trial. The county assembly is the prosecutor. Our national prosecutor – the DPP – decides whether to prosecute a case (according to the office prosecution policy) by the question whether there is a realistic prospect of the person accused being convicted.

A county assembly should take the same approach. To get their governor convicted the county assembly needs to (i) prove that the governor actually did or failed to do certain things, (ii) that those acts or failures were violations of this Constitution or other law, or abuse of office or misconduct, or an actual crime, and finally (iii) that they were not any misconduct but gross – exceptionally bad.

While we certainly do not want seven year prosecutions like the Governor General of India’s, at present the County Governments Act treats it all a bit like an administrative process. Timelines are too short. This is the future of a person, a state officer, and the peace of a county that are at stake. You are considering overthrowing the democratic will of the people of the county (which no amount of public participation can wipe out). Surely it merits the possibility of more than three days in a committee?

Senators have raised the idea that there should be a period when governors are immune from impeachment. This idea already appears in connection with votes of no confidence in some countries’ constitutions.

For example, in Papua New Guinea it is not possible for the first 18 months of office of a Prime Minister. Maybe this is too long. But a presidential system is supposed to be more stable than a parliamentary system, but this would undermined by too easy and frequent impeachments. It might be hard to limit when presidential impeachments could take place, at least without amending the Constitution, but the Constitution does not regulate those of governors.

It has been suggested that mediation between governors and county assemblies should be possible to try to avoid impeachment. Or maybe we need something before things get to the dispute stage. It is most unfortunate that things work out this way – with county assemblies and governors against each other. A sad example of the tendency of at least our politicians to see things as being all about them.

Hopefully over the years – even over the centuries like the US – the people, the politicians and the system will get more used to each other, and we shall see fewer displays of selfish behaviour. Somehow assembly members must learn, as senators urged them, to realise that impeachment is intended to be a last resort – a solution for certain genuine and grave problems in a county that cannot be solved any other way.

They need to learn what the job of the governor is, and what their own job is (as governors also do). It is depressing to read that a factor in all this mess was the demand of MCAs for Ward Development Fund. This obsession of legislators about controlling, or seeming to control, “development” money, undermines their roles as legislators – makers of law, and scrutinisers of the work of their government, as mandated by the Constitution.