Can courts prevent county assemblies from voting on impeachment ?
What you need to know:
- Trouble had started brewing in Embu after the governor and his deputy were blamed for irregularly awarding a KSh33 million stadium upgrading project coupled with a suspicious maize seeds purchase.
- There are two main laws dealing with impeachment of governors: The Constitution of Kenya 2010, article 181, and the County Governments Act, 2012, section 33.
- Courts should respect the autonomy of Parliament and County Assemblies.
Nyagah Wambora, Governor of Embu, is going down politically and historically as the first governor to be impeached. Embu is in-pain!
In a bold and unprecedented move, 22 out of 33 Embu County Assembly members voted in favour of the impeachment motion.
Trouble had started brewing in Embu after the governor and his deputy were blamed for irregularly awarding a KSh33 million stadium upgrading project coupled with a suspicious maize seeds purchase.
The charges are many: Gross violation of the Public Procurement and Disposal Act 2005, the Public Finance Management Act 2012, the County Governments Act 2012, and the Kenyan Constitution. Basically it all boils down to abuse of office.
A few days before the motion was debated, Justice Cecilia Githua, of the High Court in Kerugoya, had issued conservatory orders stopping the debate pending a case filed by the Governor.
There are two main laws dealing with impeachment of governors: The Constitution of Kenya 2010, article 181, and the County Governments Act, 2012, section 33.
Here we find a pretty clear direction. Article 181 of the Constitution specifies four grounds for impeachment, which are: gross violation of this Constitution or any other law, serious reasons for believing that the county governor has committed a crime under national or international law, abuse of office or gross misconduct and physical or mental incapacity to perform the governor’s functions.
SENATE COMMITTEE
The Constitution also directs Parliament to enact laws to deal with the procedure for impeachment. In 2012 Parliament passed the County Governments Act. Section 33 of this Act designs the procedure for impeachment, which is generally as follows:
First, a County Assembly member, with a one-third endorsement will notify the Speaker and move a motion to impeach the governor. If this motion is supported by two-thirds the County Assembly Speaker will notify the Senate Speaker. The governor will remain in office while this saga is going on.
The Senate will meet and may appoint a special committee, comprising of eleven Senators, to investigate the matter and report to the Senate. During investigations, the governor has the right to be heard.
Two things can happen once the investigation is over: The proposed impeachment is either dismissed or upheld by the Senate committee. If it is dismissed the matter is over and a new motion based on the same charges cannot be re-introduced for 3 months.
If it is upheld by the Senate, Nyagah Wambora automatically ceases to be the Governor and Nditi, his deputy, becomes the Governor. If Nditi is also impeached then Justus Kariuki, the County Speaker, becomes Interim Governor and calls for elections, which should be held within 60 days.
However, the most striking thing in this saga is the High Court orders instructing the County Assembly to stop deliberating on the issue.
Could anyone argue that the Court overstepped its mandate? Can courts stop County Assemblies from deliberating and voting on impeachment issues?
JUDICIAL ACTIVISM
Justice Githua’s orders seem to contradict the Mwaura principle. This principle derives from the Joseph Njuguna Mwaura case. It was a decision by the Court of Appeal, where the Court stated what has become a very thought-provoking principle: “The Court cannot purport to be ahead of the people of Kenya or Parliament. The best the Court can do is exercise judicial authority conferred upon it…interpret and apply the law in the manner envisaged. …It is no part of this Court's function or duty to make declarations in general terms regarding the powers of Parliament…It is not the role of judges to engage in wandering and wilderness interpretation of what the law ought to be".
Courts should respect the autonomy of Parliament and County Assemblies. It would be an aberration for Parliament or a County Assembly to interfere with the Judiciary and direct that, for example, a judge should stop a decision because the Assembly is changing the law. Equally absurd is that a court gives orders to Parliament or a County Assembly on what to debate or not.
Judicial activism has its limits. Political problems must be resolved politically. If Wambora did wrong he has to say sorry and make right. Applying legal solutions to political problems or political solutions to legal problems always backfires.
We can’t involve the courts in everything. The courts themselves shouldn’t allow this.
For Wambora, this tribulation has been like a mustard gas and pepper spray attack. If he survives it, he will really be a seasoned veteran!
Dr Franceschi is the Dean of Strathmore Law School. [email protected]
Twitter: @lgfranceschi
