GHAI: Is Waiguru talking sense about impeachment of governors and recall of MPs?

“Oh Dear, Oh Dear” was my first reaction to the news that the newly reelected chairperson of the Council of Governors was arguing that the statutory rules for recall of MPs should apply to impeachment of governors as well.

This was not only because this seemed such a self-interested approach. The CoG has done some good work, and one hopes it does not become just a Governors’ Trade Union (not that there is anything wrong with trades unions).

Nor was it because there is no problem about impeachment. Reports suggest County Assemblies sometimes hold impeachment threats over their governors to persuade them to take steps that will benefit the MCAs. I recall that, when Nigeria returned to civilian rule under a new Constitution (the 1979 one, I think), in one state the governor was of a different party from the State Assembly majority.

The State Assembly refused to approve any of the Governor’s appointees to his cabinet, and set about organising an impeachment process, eventually succeeding. Everything else, including having an effective government in the state, was subordinate to the political issue of which party prevailed.

Impeachment and recall

Impeachment is a process by which the president (and deputy) and county governors can be removed. Impeachment itself is the process involving the legislative body (National or County Assembly) presenting a case against the president or governor to the Senate – a bit like a prosecution of a crime.

The Senate is the court and decides the case. And the majority of impeachments have failed at the Senate stage. The MCAs (or MPs), however, vindictive or irrational, do not finally decide. I still hope that MCAs will learn not to waste their time with doomed impeachments. And indeed that the electorate will come to take seriously legislators who waste their time playing impeachment politics, rather than concentrating on the tasks for which they are elected – and perhaps not re-elect them.

Nor is it necessarily the case that governors are innocent. And the threat of impeachment may actually serve a useful function as a deterrent against certain sorts of behaviour. Recall is different. It is the people who elected an MP or MCA saying, “We sent you there but you have let us down. We want to withdraw your mandate.” A successful recall petition would necessitate an expensive election. And there is no equivalent of the Senate to (hopefully) inject some measure of caution into the process.

The Constitution is fairly detailed about how to impeach a president. It does not mention specifically ‘impeaching’ Governors – but says they may be removed for reasons similar to those justifying removal of a president, leaving it to Parliament to make the necessary law. And Parliament did so in the County Governments Act, modelling the procedure on the presidential impeachment process.

The Constitution says very little about recall: the people have the right to recall their MPs or senators. And Parliament enacted the necessary law (in the Elections Act) and included recall of MCAs in the County Governments Act.

Parliament actually made it harder to recall an MP than an MCA. Both Acts require a recall petition to be signed by at least 30 percent of the voters in the constituency, county or ward. The grounds for recalling an MCA are gross violation of the Constitution or other law or incompetence, gross misconduct, or being convicted of an offence punishable by imprisonment for at least six months.

An MP could be recalled only for violating Chapter Six of the Constitution on ethics, mismanaging public resources or being found guilty of an offence under the Elections Act. Also, recall could only take place if the MP in question had been found by the High Court (not even a magistrate’s court) to have done one of these things.

So recall had to be preceded by a major court case. Incidentally, both MPs and MCAs would lose their seats automatically if sentenced to six months or more in prison or found by a court to have abused their office or Chapter Six (Article 99(2)(g) with Article 103(1)(g)). The recall laws especially for MPs added little.

Another thing limiting the possibility of recall is that a petition cannot be presented during the first two years after the MP (or MCA) was elected, nor during the last year of that person’s term.

A recall petition cannot be brought against an MP or MCA more than once during a term of office.

You can see why Governor Waiguru found this appealing. As she said, “The process of recalling a Member of Parliament is quite lengthy and it’s made very cumbersome and it’s limited in time.”

What happens elsewhere?

Impeachment of a state governor in the US is governed by the state’s constitution (all except one do have provisions for impeachment). Grounds are similar but not identical – more like those for removing the president here than for recalling an MP. The process does not involve the national Senate.

There are, as far as I know, no restrictions of windows of time for impeachment. You may recall US President Trump was impeached twice during his term as President – the second time just a week before that term ended. There was no prospect of his being removed from office – his party controlled the Senate.

In Nigeria, impeachment of a Governor does not involve the national Senate. Nor can there be any court challenge to the outcome – unlike here.

 What makes sense?

There might be grounds for somewhat restricting when impeachment is possible. At least the during the governor’s first year, he or she should be allowed to find their feet. If there is a real disaster, there are other ways – under Article 190 or 192 – to deal with it: the national government can step in to rescue the situation.

Whether there should be a bar on impeachment in the last year of office is less clear. A successful recall petition would mean there would have to be an election – which is a waste of money so close to the general election. By-elections cannot happen in the last six months. In the case of impeachment, the deputy governor takes over – no election is needed. If there is no deputy (Nairobi had that experience under Mike Sonko) the county Assembly Speaker would take over and an election would be needed – but this would be rare.

It is not clear whether Waiguru wanted the grounds to be limited. If so. it is necessary to remind her that the High Court (Justices Kimondo, Mwita and Odunga) held those provisions of the Elections Act unconstitutional – indeed, “meaningless and superfluous” and “falling far short” of the requirements of Article 104 about the right to recall one’s MP.

They did not declare the two-year window unconstitutional though, which is regrettable. They recognised that it might be too narrow – but left it to Parliament.

Is it ignorance, one wonders, that leads officers who ought to be fully aware of things like this –such as that a statute one is relying on has been at least partly declared unconstitutional – or what lawyers might call “wilful blindness”?

Governor Waiguru compared governors with MPs and said the former should not be in a worse situation. Is this analogy with MPs logical anyway? Governors vis à vis their county assemblies are in roughly the same position as the President vis à vis Parliament. Since impeachment of the president is in the Constitution in detail, it seems unlikely that the procedure could be narrowed by law. But Governor Waiguru did not chose to compare governors with the president.

Ultimately the solution lies in the maturity of MCAs and hopefully their growing experience, in the behaviour of the governors themselves, and the common sense of the voters when it comes to reelecting people who have put selfish concerns above county interests.

By the way – we have no provision for the voters to recall governors. Should we have? Twenty US states allow it – though only two governors have actually been recalled.