A geothermal plant. PHOTO | FILE
NATION MEDIA GROUP
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. Lfranceschi@strathmore.edu
Twitter: @lgfranceschi
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