The fate of Malindi MP Aisha Jumwa as a commissioner with the Parliamentary Service Commission (PSC) now hangs by a thread after her party — ODM — said it will fasttrack her removal for openly supporting Deputy President William Ruto.
And the passing of the Parliamentary Service Bill, which among other things, now outlines the procedure of removing a member of the PSC or an elected MP who goes against a party position, makes it easier for Mr Raila Odinga’s party to have its way.
ODM nominated Ms Jumwa to the lucrative position after the August 8, 2017, General Election.
However, the outspoken legislator turned her back against her party by openly supporting Mr Ruto’s bid to succeed his boss, President Uhuru Kenyatta, in 2022.
Ms Jumwa has been one of the key personalities and a proponent of Mr Ruto’s 2022 bid as depicted in the many succession political rallies held across the country in open defiance of President Kenyatta on the need to slow down the electioneering mood in the country.
Minority Whip in the National Assembly Junet Mohamed, who is also the Suna East MP, said that he will restart the process of having the rebellious lawmaker removed from the commission.
“It is very clear that Hon Aisha is not in line with the policies and aspirations of the party that nominated her to the PSC,” Mr Junet said.
Section 14 of the Political Parties Act provides that a member of a political party is deemed to have defected if that member advances the interests of a rival party other than the one that sponsored him or her.
“Now that the bill has outlined how to deal with her, we shall follow the due process,” the minority whip said.
However, jump-starting of the process of removing the MP will depend on whether President Kenyatta signs into law the bill passed in the National Assembly early this month.
The appointment of members of the PSC is guided by the provisions of Article 127 of the Constitution and in June last year, Mr Odinga’s party officially started the process of removing the Malindi MP from the PSC.
This came after Mr Junet on June 20, 2018, officially submitted a letter of displeasure to National Assembly Speaker Justin Muturi expressing his desire to remove the Malindi MP from the commission.
“I seek guidance on how to remove and hence replace a commissioner the PSC … your urgent consideration on this matter will be highly appreciated,” Mr Junet’s letter read.
But the motion could not proceed because there was no clear provision in the law on how a commissioner of PSC, who is an MP, can be removed.
The attempt to have Ms Jumwa removed from the commission came after the party’s management committee, its highest decision making entity, endorsed the resolution of National Executive Council (NEC) excommunicating the MP from ODM following the recommendations of the disciplinary committee.
Ms Jumwa would later be saved by the Political Parties Dispute Tribunal (PPDT) that invalidated the ODM disciplinary committee recommendations.
The Constitution in Article 251 provides the formula of removal from office a member of a constitutional commission.
It goes on to list the grounds, which include serious violation of the Constitution or any other law, contravention of Chapter Six (leadership and integrity), gross misconduct, physical or mental incapacity to perform the functions of office, incompetence, and bankruptcy.
Whereas the grounds are easily applicable to the members of other commissions in line with their respective laws, the removal process is silent as regards a member of PSC.
But in addressing the lacuna, the bill provides that because the appointing authority of PSC commissioners is Parliament through a motion tabled and considered by the House, it, therefore, follows that the dismissing authority is also Parliament and the procedure for removal shall be through a motion sponsored by any MP.
This implies that a party intending to remove a commissioner must do so through a motion filed and approved by the Speaker.
In approving the motion, the House will consider the grounds for removal and whether the person has been accorded a fair hearing.
If signed by the President in its current form, an MP supported by at least a quarter of all the members of respective House may propose a motion for the removal of a commissioner under the grounds as specified in Article 251.
The National Assembly has 349 members while the Senate has 67.
If the motion is supported by at least a third of the members of the respective House, the respective House shall appoint an 11-member select committee to investigate the matter.
The special committee shall within 10 days report to the respective House whether it finds the allegations to be substantiated.
If the committee finds the allegations not meeting the test, the matter shall die there.
If the allegations are substantiated and the motion is supported by a majority the members in the respective House, the Speaker of the relevant House shall inform the Speaker of the other House of the resolution within two days.
During this time, the affected member shall continue to serve as a commissioner. If both Houses pass the motion in the same form, the member of the commission shall stand removed.
According to Baringo North MP William Cheptumo, who chairs the Justice and Legal Affairs Committee of the National Assembly, Article 259 (1) (d) of the Constitution should be interpreted in a manner that provides good governance.
“The processes of removal from office are meant to promote good governance as they act as checks and balances mechanisms for safeguarding against abuse of power,” Mr Cheptumo says.