Opinion is divided on whether the Senate may have violated the law when it failed to consider the impeachment of Kiambu Governor Ferdinand Waititu within the required time frame.
Section 33 (3) of the County Government Act provides that within seven days after receiving notice of a resolution from a Speaker of a County Assembly, the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor.
It continues to say that the Senate, by resolution, may appoint a special committee comprising 11 of its members to investigate the matter.
Mr Waititu, who is barred by the court from accessing his office over an abuse of office charge, was impeached by the members of the Kiambu County Assembly on December 19, 2019.
The MCAs accused the embattled governor of abetting corruption, direct conflict of interest involving his family, which is blamed for doing business with the county, and over-budgeting in the roads department for kick-backs.
Although Kiambu County Assembly Speaker Stephen Ndichu communicated the verdict of the Assembly to Senate Speaker Ken Lusaka on December 23, 2019, the Senate is yet to state its position on the matter – well beyond the seven days required.
By the application of the provision of the law, the matter should have been considered before the end of last year as there has been a precedent by the House.
Mr Lusaka now says that the House will convene for a special sitting on January 21 to discuss the impeachment.
“The leader of majority has written to me proposing January 21, 2020 for the special sitting. He is now collecting signatures from Senators to make the meeting a reality,” Mr Lusaka said.
With the matter already beyond the legal timeline, any meeting called by the Senate to consider it could be challenged in court in a move that could easily hand Governor Waititu a lifeline.
In such a scenario, the county Assembly will be required to impeach Governor Waititu afresh but, at an extra cost to the taxpayer courtesy of the Senate’s failure to do its job.
According to Dr Mutakha Kangu, the former chairperson, Task Force on Devolved Government in Kenya, the Senate chose to interpret the law to suit its own circumstances.
“If the law says that the Senate must consider the matter within seven days, any other interpretation is weird. If anything, it is the Speaker of the Senate who has the power to recall the Senate for an urgent sitting to deal with this matter. He does not need the prodding of the Leader of Majority or Minority,” Dr Kangu says.
Dr Kangu further says that what Speaker Lusaka did could easily pass as an abdication of official duty.
“The Speaker ought to explain this because it sounds ulterior. It is not in the spirit of devolution,” he says.
Makueni Senator Mutula Kilonzo Junior says the matter is serious and that Speaker Lusaka will “definitely” be required to explain to the House when the matter was to be considered.
“These are some of the preliminary issues I will be raising because I expect issues to be asked on this matter. The speaker must rule when the seven days are supposed to start counting,” Mr Kilonzo Junior said noting that it is not null and void yet.
But leader of majority in Senate Kipchumba Murkomen said Governor Waititu’s impeachment is properly on course.
“The House had already proceeded on recess and there was no legal instrument requiring the recall of Senators to hear the matter. We agreed as a House leadership that we deal with this matter later. I have already received the necessary signatures to convene the special sitting to consider the impeachment,” Mr Murkomen said.
Why Mr Murkomen is saying that there was no legal instrument to warrant the Senate recall from recess as there is a lacuna in law - the County Government Act is not clear as it is against precedents set by the House.
On May 23, 2014, the Senate was recalled from recess to consider the impeachment of Kericho Governor Prof Paul Chepkwony.
The same day, the Senate established a special committee that was chaired by then Kisii Senator Chris Obure to probe the matter. The committee tabled its report on June 2, 2014.
On December 30, 2016, the Senate was recalled from recess to consider the Public Audit and Energy Bills.
On January 5 and 6, 2017, the Senate was again called from recess to pass the contentious Security Laws (Amendment) Bill, which they did without altering even a comma.
The question, therefore is, what has changed? Are the Senators applying the law to their convenience?
Why Mr Murkomen is also advancing the issues of collecting signatures to petition for the special sitting on a matter as weighty as this raises eyebrows.
According to the Constitution, the applicable laws and the House Standing Orders, the two Houses of parliament may be recalled for a special sitting on two grounds - if there is an urgent matter that the president wants considered and if they are bound by law to deal with some issues within a specific timeline.
On the issue of impeaching a governor, there is no requirement to collect signatures as the Speaker is obligated to gazette the special sitting as the law says.
Concerning the President’s policy decision, that is where the issue of collecting signatures comes in.
In this case, the President informs the Leader of Majority of the matter he wants parliament to consider.
If the relevant House is on recess, the President will ask the Leader of Majority to petition the Speaker to recall the House but this does not apply for instance when the House is required to vet or impeach a state officer.