31st may 2022
By Miss Kamau
Worth Noting:
Article 145 of Kenya’s Constitution lays out the grounds and procedures for impeaching a president.
(1) A member of the National Assembly may move for the impeachment of the President
(a) on the basis of a gross violation of a provision of this Constitution or of any other law
(b) on the basis of a gross violation of any provision of this Constitution or of any other law
(c) on the basis of a gross violation of any provision of this Constitution or of any other law
(d) on the basis of a gross violation of any provision of this Constitution or of any other law
A number of countries have employed impeachment as an effective strategy to fight corruption and other gross vices by those elected by the public in holding a public office basically as representatives. Scholars have suggested that impeachment originated from the United Kingdom. The United States developed on the process having been a colony of the United Kingdom and has since used it in a more modernized and democratic fashion being adapted in other various countries legislations and statutes.
The word impeachment means a proceeding of a criminal nature against a public officer, before a quasi-political court, initiated by a written accusation called “articles of impeachment.
Charles Black Jr., a Yale Law professor, authored “Impeachment: A Handbook” in 1974. Prof. Black proposed “overwhelming preponderance of the evidence” as a middle-ground criterion for impeachment trials in a paper. “Weighing the factors, I’m sure that one shouldn’t be satisfied, or even close to satisfied, with the mere ‘preponderance’ of an ordinary civil trial, but perhaps must be satisfied with something less than the ‘beyond a reasonable doubt’ standard of an ordinary criminal trial, The British Parliament invented impeachment in the 14th century to regulate royal appointees, according to Plunkett. It gave the British Parliament the right to act as a court, allowing the House of Commons to prosecute, or impeach, a public official in front of the House of Lords. The first recorded and accepted document was said to have been produced by the Parliament of 1376.
“Impeachment is not a redress for private wrongs; it’s a technique of removing someone whose prolonged stay in government would pose severe risk to society,” Charles Ruff famously stated. Impeachment is a powerful tool that punishes the man without punishing the office. It is a tool that is used to control those in power..”
Following the Nigerian case of Hon. Muyiwa Inakoju, the court in Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 other stated that impeachment of a governor should not be taken lightly and should not be utilized for political purposes. Article 181 of our constitution establishes very stringent requirements for removing a governor. In Stephen Nendela v County Assembly of Bungoma & 4 Others, Justice Mabeya ruled that the county assembly must be extremely objective and adhere to fair-distribution-of-justice principles. If a motion to remove a member of the executive committee isn’t approved.
Power can be utilized for good, but if it is not properly regulated, it can also be used for harm. Impeachment, as a result, is a protection. As a result, impeachment is a tool for ensuring that no one is above the law. For egregious insubordination, impeachment is one of the checks and balances instruments available to leaders.A good example is impeachment procedures against Deputy President William Rutothat have been mooted severally, which was said to be in direct conflict with his Jubilee party membership in such that Ruto’s UDA party’s constant open defiance undermines Jubilee’s ruling coalition’s operations. There is also the fact that Mr. William Ruto is the owner of the UDA party, which is in direct contravention of his membership of the Jubilee party. The continuous outright defiance of Mr. Ruto’s UDA party subverts the operations of the Jubilee ruling party per the set rules in Election Act and political parties Act.
Provision on Impeachment of Governors
The County Government Act, 2012, lays forth the procedure for removing a county governor. First and foremost, a motion must be introduced by one member of the assembly who notifies the speaker in writing. To be accepted, a motion must receive the support of a third or more of all members of the house. Before being sent to the Senate, it must receive the support of two-thirds or more of all members of the county assembly. The Senate Speaker is not informed of the lower house’s decision to impeach the governor until these conditions are met. It is not essential.
Upon the matter shifting to the senate, the speaker calls for a meeting of all the members in order to hear the accusations against the governor. The members have an option of either hearing the matter in plenary or appoint an eleven-member special committee to investigate the matter. Before the investigations are concluded, the respondent in this case the governor will be afforded a chance to appear and defend himself either in person or by legal representation. As these proceedings progress, the governor should stand aside. Until a final decision is made, the law allows him to continue holding office and performing his duties and powers
The case is brought to a halt if the senate determines that the claims are without merit. If the allegations are judged to be true, the senate convenes in closed session to continue deliberations. Following that, each member votes to convict or acquit the governor on the charges. If they decide to acquit, the governor keeps his job, but he ceases to hold office if convicted.An unsuccessful motion can be reintroduced in the Senate, but only after three months have passed since it was rejected the first time.
County Assembly
In the case of the president, the national assembly, and in the case of a governor, the county assembly, does the process. The motion is moved by a member of the group who has the backing of at least a third of the other members. If the resolution has the support of at least two-thirds of all members of the house assembly later in the procedures, the process goes to the senate.
Senate
The speaker of the senate convenes a meeting of the senate to hear allegations against the president or the governor, as the case may be, after receiving the motion and resolution of the national assembly. The Senate may decide to form a special committee to look into the situation. During investigations, the president or governor has the opportunity to be heard by the Senate. After finding that the claims have been substantiated, the senate is required to vote or uphold any impeachable charge. To be concise, the senate has the authority to end the president’s or governor’s term in office.
Courts
when it comes to the impeachment process, courts have frequently been accused of usurping the powers of other branches of government. They have been accused of issuing unnecessary instructions that obstruct the parliament’s functioning. When faced with impeachment or even threats of impeachment, a number of public authorities, including governors, turn to the courts for orders to halt the process.The impeachment procedure has been heavily influenced by the courts. Martin Nyaga Wambora and three others v Speaker of the Senate and six others. The High Court was found to have a supervisory function over impeachment processes as well as constitutional authority to hear and decide any impeachment-related question. Courts rule on constitutional issues that emerge throughout the impeachment process.
The grounds for impeachment of either the president or the governor are essentially the same. However, different legal frameworks specify how they should be removed. The procedure for the president is spelled out in the constitution, whereas the procedure for a governor is spelled out in the County Government Act, 2012.
Article 145 of Kenya’s Constitution lays out the grounds and procedures for impeaching a president.
(1) A member of the National Assembly may move for the impeachment of the President
(a) on the basis of a gross violation of a provision of this Constitution or of any other law
(b) on the basis of a gross violation of any provision of this Constitution or of any other law
(c) on the basis of a gross violation of any provision of this Constitution or of any other law
(d) on the basis of a gross violation of any provision of this Constitution or of any other law
Before the speaker of the national assembly can convey the lower house’s resolution to the speaker of the senate, the motion
must get two-thirds of the members of the house’s approval. The speaker of the senate convenes a meeting of the senate to hear allegations against the president after being informed of the national assembly’s decision. The president is not compelled to step aside while the processes are ongoing. Until the resolution of the procedures, he is permitted to continue executing the duties of his office.
The Senate has two options, hold impeachment proceedings in plenary or form an eleven-member special committee to probe the matter. During investigations, the president has the right to appear before the whole house or the special committee, as the case may be, and be represented by legal counsel of his choosing. The case is closed at that point if the house determines that the claims against the president are unfounded. If the claims are found to be true, the president, as the respondent, is given the opportunity to defend himself. The accusations are then voted on by the Senate.
To uphold any impeachable accusation, two-thirds of all senators must vote in favor, and if that happens, the president is removed from office. If this occurs, parliament, which has the authority to impeach the Deputy President, will begin the procedure. Impeachments are procedural, and the law spells forth the steps that must be taken. According to Kenya’s Constitution (2010) the procedure for impeaching a Deputy President is laid down in Article 150, which outlines the grounds for removal from office. It states that:
(1) The Deputy President may be removed from office—
(a) on the ground of physical or mental incapacity to perform the functions of the office;
(b) on impeachment—
(i) on the ground of a gross violation of a provision of this Constitution or any other law;
(ii) where there are serious reasons to believe that the Deputy President has committed a crime under national or international law;
(iii) for gross misconduct
Three governors have been impeached so far, Nairobi, Murang’a, and Embu, and while none has yet to lose their seats, they have sort legal intervention to rerun for the same offices but the IEBC is bound to clear them inorder to run for public offices again, which thus undermines the aspect of integrity as among one of the leadership quality a leader must possess unless proven clean before the court of law.
Grounds for the removal of a county governor
Article 181 of the Constitution provides for the removal of a county governor. A county governor may be removed from office on the following grounds:
- Gross violation of the Constitution or any other law.
- Where there are serious reasons to believe that the county governor has committed a crime under national or international law.
- Abuse of office or gross misconduct
- Physical or mental incapacity to perform the functions of the office of the county governor.
Article 181 also requires Parliament to pass laws outlining how a county governor can be removed from office for any of the reasons listed above.
Procedure for the removal of a county governor
The method for removing a county governor is outlined in Section 33 of the County Governments Act. Article 181 of the Constitution allows a member of the county assembly (MCA) to move a motion for the removal of a Governor by sending a notice to the speaker. To move the motion, the member must have the backing of at least a third of the county assembly members. If two-thirds of the members of the county assembly support and vote in favor of impeaching the county governor, the speaker of the county assembly notifies the speaker of the Senate (in writing) within two days. Despite this, the Governor continues to carry out the duties of his office until the outcome of the investigation of the impeachment proceedings.
The speaker of the senate then calls a senate meeting to hear the charges leveled by the county assembly against the governor. The Senate then establishes an eleven-member special committee to investigate the topic after making a decision. After the speaker of the senate receives notification of the resolution to impeach the governor from the speaker of the county assembly, these two actions must take place within seven days.The 11-member special committee of the Senate should then investigate the matter and report to the House within ten days on whether it finds the charges brought against the governor as being substantiated. The governor has the right to appear and to be represented before the committee during the duration of its investigations.
If the special committee reports that the claims against the governor or the specifics of the allegations have not been confirmed, no further action will be taken. If the claims or particulars of the allegations are verified, the senate will vote on the impeachment charges, but only after ensuring that the governor has been given a fair hearing. The governor will be removed from office if a majority of senators decide to support the impeachment charge. However, if the members of the senate vote to reject the impeachment charge, the speaker of the senate must notify the speaker of the county assembly involved. The motion for impeachment on the same allegations can only be brought before the county assembly after three months have passed after the Senate voted on it.
The procedure for removing the President on grounds of incapacity under Article 144 of the Constitution will apply to the dismissal of a governor, with necessary changes.
Vacancy in the office of the County Governor
The method for filling a vacancy in the position of county governor is outlined in Article 182 of the constitution. When the governor is impeached, the deputy governor assumes control of the county for the duration of the governor’s tenure.
If the deputy speaker is unable to undertake the office of governor as described above, the county assembly speaker will act as the county governor. Within sixty days of the speaker taking office as county governor, elections for the office of county governor will be held.
Conclusion
The impeachment process may take place quickly, but with scant regard for the rule of law. Fortunately, the judiciary has stepped in to help those who have been wronged by the processes and choices. Like in the technique that was utilized against the president of South Korea, but the result was overturned by the court in a case known as “judicialization of politics.” The involvement of courts in overturning legislative decisions in both Nigeria and South Korea may be seen as an affront to the principle of separation of powers, but it also shows that the judiciary should not remain silent when there are apparent flaws in the impeachment proceedings. Brazil, that mechanism was recently utilized to impeach two of its presidents. Similarly, in Kenya, the process has been a double sword under stringent applications of laws and regulations and termed to be unfair and unlawful on the victim’s side, but at any point the constitution should act as a neutralization as well as its supremacy applied as an umbrella to cover all provisions in regards to impeachment from office, to enhance fairness and reduce politicalization of public offices.