Fundamental questions raised by Mwangaza's impeachment

Meru Governor Kawira Mwangaza with her lawyers Elias Mutuma and Elisha Ongoya during the impeachment hearing before the Senate Assembly on August 19, 2024 [Boniface Okendo, Standard]

The ugly events that have been playing out at the County Government of Meru highlight a serious flaw in the constitutional design of our devolved system. Within bounds of basic decency, it is unacceptable for a County Assembly (CA) to impeach an elected governor three times within 24 months. The whole charade boils down to adults behaving badly in public.

Meru is now the third county to experience a complete breakdown of governance under the Constitution. First it was Makueni in the early years of devolution, narrowly avoiding dissolution thanks to former President Uhuru Kenyatta. Embu followed, losing almost an entire electoral term to disputes between former Governor Martin Wambora and the CA, with the courts ultimately resolving the matter for the benefit of Embu's residents.

Marsabit County has also had a fair share of unrelated drama that saw President Kenyatta threaten to dissolve the County Government following lengthened deadly politically instigated tribal conflicts. In Meru, all efforts to bring sanity among the elected leaders seem to have hit a brick wall. Even the highly respected ‘Njuri Njeke’ among the Ameru people have washed their hands off the political wrangles in the county.

As a true champion of devolution, it pains to see such great injustice get committed to the people of Meru by those they entrusted with power to lead them. At this juncture, I must confess that I do have family ties with the County and have had previous professional interaction with the County Executive before. But I have had no direct interaction with any arm of the current administration.

As things stand, the people of Meru are likely going to suffer loss of the full term that Madam Kawira Mwangaza will remain the elected Governor of the County. With the matter now before the courts for arbitration, there is no way the slow wheels in the corridors of justice will bring this matter to a definitive conclusion before the dates of the next general election. So all odds remain in favour of the Governor, at least for her three remaining years in office.

The logical question left now is: what will happen to service delivery for the people of Meru in the circumstances?

Nothing unusual

For the purpose of this article, I would not discuss the merits or demerits of the motion approved by the Senate because the matter is before a competent court. But we can look at the reports of the mandated independent oversight government agencies to determine if there is anything uniquely wrong in the records of the county.

From the Controller of Budget (CoB) report for the first nine months of the fiscal year 2023/24, there is nothing peculiarly wrong with the performance of the county on key indicators. The approved budget for the County for the year was sh.11.9 billion financed 92.7 per cent from national government equitable share and conditional grants, and only 7.3 per cent from internal revenue sources. The county target for internal revenue collection was sh.866 million.

As of March 31st, Meru county had collected 78.2 per cent of her target, with the Facility Improvement Fund (FIF) collected from health facilities surpassing annual target to 103.4 per cent in the first nine months. Only seven other counties surpassed this ratio for own source revenues in the country. The average collections for the 47 counties against target was 51.3 per cent. The absorption rate of the county budget was within range like any other county. So as per the CoB reports, Governor Kawira hasn’t performed dismally than her colleagues. In any case, she has done better than many of them in as far as these indicators are concerned.

Turning to the Auditor General’s reports for the fiscal year 2022/23, the most recently available audited reports, Meru County Executive received Qualified Audit Opinion, similar to that of the County Assembly itself. None of the 47 County Executives received an unqualified (clean) opinion. 40 other County executives received a qualified opinion like Meru, while six counties including Tana River, Kiambu, Baringo, Narok, Nyamira and Nairobi got Adverse Audit Opinion. That means the Auditor found sufficient grounds to confirm the financial reports of this counties were not true, fair and did not represent that which they purported to represent. The issues that led to qualified opinion for Meru were similar to those of other counties that got a similar audit opinion.

These two Independent Constitutional offices reports directly to the people of Kenya thought their elected representatives. That means their reports are meant for the Parliament and the respective CA for the counties. The Supreme Court, in a ruling delivered on October 7, 2022 in relation to Petition No. 24 of 2019, consolidated with Petition No. 27 of 2019, declared that County Assemblies have first tier powers on oversight of revenues of County Governments. Effectively, that would imply that the CA of Meru has the primary powers to deal with audit issues raised by the Auditor for the County Executive.

As an organ of government in Meru, the CA had skeletons of their own similar to those with the executive. However, the question that is emerging from the excesses been witnessed among many counties is whether audit issues raised in audit reports are automatically offenses that qualify the threshold of impeaching a governor. In as far as the practice of audit is concerned, matters raised during ordinary audit require further interrogation or separate investigative audit to confirm the threshold for criminal malpractice.

That explains why the Public Accounts Committees (PAC) of Parliament and County Assemblies are granted quasi-judicial power in the conduct of their oversight role over the executive. It is these committees that can commission investigations or recommend criminal prosecution for culpable officers.

However, in relation to the government operating procedures, a County Governor is not the one who bears the primary responsibility in use of public funds in county departments. The Public Finance Management Act of 2012 confers that responsibility to the appointed Accounting Officer (AOs) for each department. In the counties, it is the Chief Officers who are appointed into that role. An AO must be designated in writing by the County Executive Committee Member of Finance in writing under Article 226(1)(b). It is the AOs who bear the primary responsibility on the use of funds in their department to PAC for either the National Assembly or the CA under Article 226(2) of the Constitution.

Given this legal and operational procedures in public finance management, how easy is it to pin a governor on funds misappropriated in a county department in a judicial process unless they exclusively granted written approval? While Article 226(5) contemplates a case where senior state officers can direct actions to subordinates, such is difficult to prove in reality unless it was exclusively written authority. In such case, Article 226(5) presumes the junior officer acted under duress and the state officer directing bears the responsibility.

Going forward, while we must respect the provisions of Article 174 (c)&(d), such cannot be exercised by elected representatives in exclusion of the rest of the provisions of the same Article. More importantly, a Constitutional question that is emerging is why the impeachment of governors is left loosely at the discretion of Members of County Assemblies, who in reality have vested interests on resources under the control of the governors? Is it not time that the threshold of impeaching an elected governor is tied to that of the President or Members of Parliament?