UNDERSTANDING THE PROCESS OF IMPEACHMENT UNDER THE KENYAN LAW: CASE OF COUNTY GOVERNORS.

Introduction:

The Constitution of Kenya, 2010 creates a decentralised system of government wherein the Legislature and the Executive are devolved to the forty-seven (47) Counties. The primary objective of decentralization is to devolve power, resources and representation down to the local level. The executive authority of the County is vested in, and exercised by a County executive committee which consists of the County Governor and the Deputy County Governor, and members appointed by the County Governor, with approval of the assembly .

The County Governor is elected to office directly by the voters registered in the County and he/she shall not hold office for more than two (2) years . He/she may be removed from office on any of the following grounds; (a) gross violation of the 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 office of County Governor .

Much as the Constitution does not explicitly talk of impeachment when it comes to removal of a County Governor as expressly stated in the case of President and Deputy President , motions seeking to remove County Governors through impeachment have been tabled before County Assemblies for debate.

Meaning of Impeachment:

The term “impeach”, means to charge with a crime or misconduct, especially to formally charge a public official with a violation of public trust . Impeachment therefore is an act by a legislature of calling for removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct .

Reasons for Impeachment:

Impeachment plays a unique role in a system of government . It serves as the method by which a State organ disciplines an errant official so as to maintain public confidence in the political system . It seeks to remove individuals unfit for office.

Being a state officer , the County Governor is obliged to hold the office in the best interest of the people he serves . He/she must carry out the duties of the office efficiently, honestly and in a transparent and accountable manner . He/she shall be personally responsible for consequences of any actions or omissions arising from the discharge of the duties of the office. Much as it is designed to check the gross misuse of authority, the process must also guarantee due process for the official accused of violating the public trust .

Process of Impeachment:

The County Governments Act details the procedure for removing/impeaching the County Governor. Any member of the County Assembly may by notice to the Speaker of the Assembly move a motion for the removal of the Governor. The motion must be supported by at least a third of all members of the Assembly . The motion will be debated and if it is supported by at least two-thirds of all members of the County Assembly, then the Speaker of the County Assembly shall inform the Speaker of the Senate of the resolution within two days . The Governor shall continue to perform the functions of the office pending the outcome of the proceedings .

The Speaker of the Senate shall then convene a meeting of the Senate, seven (7) days after receiving the notice of resolution from the Speaker of the County Assembly, to hear charges against the Governor. The Senate, by resolution, may appoint a special committee comprising eleven (11) of its members to investigate the matter and report to the Senate within ten (10) days on whether it finds the particulars of allegations against the Governor to have been substantiated . Case in point is the special committee that was appointed in June, 2020 to investigate Hon. Anne Waiguru’s impeachment charges.

The Governor shall have the right to appear and be represented before the special committee during its investigations and if the special committee reports that the particulars of any allegations have not been substantiated, no further proceedings shall take place, as was witnessed in Hon. Anne Waiguru’s case. If any of the allegations have been substantiated, the Senate shall hear the Governor and proceed to vote on the impeachment charges .

The Governor shall cease to hold office if majority of all members of the Senate vote to uphold any impeachment charge. If the vote fails, the Speaker of the Assembly shall be notified accordingly and another motion for removal of the Governor may be re-introduced to the Senate on expiry of three (3) months from the date of such vote . It should however be noted that the charges that had been dismissed should not be re-introduced in the subsequent motion.

Standard of Proof in Impeachment Proceedings:

The Constitution describes the grounds of impeachment/removal of a Governor as (a) gross violation of the Constitution or any other law; (b) reasons to believe that a crime has been committed under national or international law; (c) abuse of office or gross misconduct or (d) physical or mental incapacity to perform the functions of office of County Governor .

The Senate is mandated under the County Governments Act to receive the motion seeking to impeach the Governor, hear the charges against the Governor and vote on the impeachment charges. It is therefore a quasi-judicial body (a non-judicial body which can interpret law). It has powers and procedures resembling those of a court of law, and is obliged to objectively determine facts and draw conclusions from them so as to provide the basis of an official action. Such actions are able to remedy a situation or impose legal penalties.

In the judicial system, the degree of certainty with which parties must prove their allegations through the production of evidence varies depending on the type of proceeding . In criminal trial, in which an accused person risks deprivation of life and liberty, the prosecutor’s burden of proof is high. Each element of the offence must be proved “beyond a reasonable doubt”. In civil litigation between private parties, in which the potential harm to a Defendant is less severe, the Plaintiff’s burden of proof is reduced. The allegations generally need to be proved on a balance of probability.

The Constitution establishes no clear standard of proof to be applied in the impeachment process. The Courts have however come up with standards to be applied while dealing with impeachment charges. In the case of Martin Nyaga Wambora & 3 Others –vs- Speaker of the Senate & 6 Others , the Court of Appeal sitting in Nyeri stated that, “The process of removal of a Governor from office is neither a civil nor criminal trial;……..There is need to maintain a high threshold for removal of the Governor and the need to ensure that the law is strictly followed. The standard of proof is neither beyond reasonable doubt nor on a balance of probability. Noting that the threshold for removal of a governor involves, “gross violation of the Constitution,” we hold that the standard of proof required for removal of Governor is above a balance of probability but below reasonable doubt.”

Transparency in Impeachment Proceedings

It is undoubtedly true that the County Assemblies and the Senate are Political bodies and as, Political bodies, their leadership may exercise broad authority to influence the Impeachment proceedings. The purpose of impeachment is to hold the Governor accountable for his/her actions hence both members of the County Assembly and the Senate need to be transparent and impartial right from the time of initiating the proceedings, conducting the hearings, and voting regardless of their political affiliations.

The County Governments Act gives the County Assembly and the Senate respective powers to initiate and try all impeachments but does not specify what such powers consist of other than that the conviction requires the vote of a majority of all the members of the Senate. Again, the County Governments Act provides for appointment of a special committee of eleven (11) members by the Senate to investigate the matter and thereafter give its verdict on the allegations. Such proceedings shall be terminated if the committee finds that the allegations have not been substantiated. With these provisions, the proceedings might be open to abuse and influence either from the political divide or the accuser. This might lead to framing of malicious charges against the Governor for political reasons or shooting down of water tight charges against the Governor or even failing to initiate any motions against the Governor at the expense of the electorate.

Conclusion:

Impeachment is meant to maintain public confidence in a political system. Hence, the process should only be initiated if the Governor is believed to have (a) violated the Constitution or any other law; (b) has committed a crime under national or international law; (c) or there is abuse of office or gross misconduct on his part.

The two Legislative organs (County Assembly and Senate) are to be guided by the provisions of the County Governments Act when faced with impeachment motions and charges. The Act promotes fair administrative action by providing that the Governor has to be present and heard during the proceedings. The Act also provides that the vote on impeachment will only pass if a majority of all members of the Senate vote in favour.

Considering that impeachment is a political and quasi-judicial process, a lot needs to be done to promote fairness and to gain the trust of the public. There is need for agreeing on the trial procedures before the trial commences. Each member of the County Assembly and Senator should seriously take his/her oath to “do impartial justice” and to support and defend the Constitution.

Lastly, serious action should be taken against members of the County Assembly, Senators or any other person involved in intimidation or bribery before and during the impeachment proceedings.

BP2O3047
AUSTINE OTIENO ODOYO
Associate, Advocate of the High Court of Kenya

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