Why MCAs are now powerbrokers

By ROSELYNE OBALA

Leaders  have raised the red flag over the wave of impeachments and say service delivery to counties could grind to a halt if they go on unchecked.

They warn that County Assemblies, whose mandate it is to provide oversight over the county executive, may have been turned into ‘lynch mobs’, ready to react at the slightest provocation.

In recent months,  several governors have been targeted for impeachment. In Embu,   Governor Martin Wambora has been impeached twice—in the first instance in February, the governor was impeached by his county assembly supported by the Senate, but the High Court in Kerugoya overturned the impeachment petition and reinstated him. Last week, the MCAs impeached Wambora for the second time, defying the court ruling which stated that the first impeachment had been voided because it was against the law.

Targeted officials

 Now other governors are being targeted by their MCAs. These include Governor Alex Tolgos of Elgeyo/Marakwet, Governor   Benjamin Cheboi  of Baringo and Governor Moses Akaranga  of Vihiga who may be relying on the Senate to rein in wayward county assemblies.  But Senate has said it would dispense the matters on a case-to-case basis and urged County Assemblies to resort to impeachments as a last resort and only in the    most deserving cases. The impeachment ‘wave’ has gripped Kericho, Nairobi, Kitui, Vihiga, Garissa, Tana River, Elgeyo/Marakwet and Baringo counties and it targets governors, County Executive officers, Chief Officers and the County Public Service Board. Senate Majority Leader Kithure Kindiki, while acknowledging that the Senate had received correspondence from the Embu Speaker, Kariuki Mate,  on Wambora’s impeachment,  challenged those running counties to live with the reality of impeachment. “The Senate will, however, check on merit and will not hesitate to throw out the charges leveled against the executive if they lack merit and vice versa,” he said.

However, various public officers have urged caution. The Commission for the Implementation of the Constitution (CIC), the Transition Authority (TA) and the Council of Governors (CoG) have taken issue with the rising impeachment petitions and warned that they could impede   service delivery to constituents.

CIC commissioner Kamotho Waiganjo, TA chairman Kinuthia Wamwangi, Senator Kimani Wamatangi (Kiambu) and CoG Secretary General Kenneth Lusaka have cautioned that the dangerous precedent set would destabilise county governments’ operations.

The leaders regret that ward representatives are using the impeachment process to  arm-twist their executives into giving in to their demands. But Prof Kindiki, while in agreement with the leaders that the county assemblies should exercise restraint, reiterated that the new constitutional dispensation had introduced a paradigm shift in the dispensing of power.

“The two levels of government must be subjected to checks and balance. At the county level, the county legislature is mandated to hold the executive to account and, impeachment is one of the tools it can explore in doing so,” he said.

“The Executive should know they are in the scope of the oversight arm of county governments which cannot be prevented or stopped from undertaking their constitutional and statutory oversight roles.

Kindiki, however, told county assemblies that their actions should be justifiable and be within the law as acting outside of legal strictures would amount to abuse of office. “We should not bash the county lawmakers wholesomely. The Senate will go through the charges presented before it by the aggrieved county and determine whether they are fictitious, baseless or trivial,” he said.

“Not every matter should result in an impeachment. The matter should be judicious and in public interest, noted Kindki, who is the Tharaka/Nithi Senator. He told county assemblies that could use other State agencies to deal with wayward members of the Executive. He noted that under the Public Finance Management (PFM) Act, the Controller of Budgets was allowed by law to freeze accounts of officials or agencies who fail to exercise fiscal accountability.

At the same time, the Senator noted that the Auditor General report could also be used by the anti-graft body and Director of Public Prosecution (DPP) to prosecute those found culpable. However, Bungoma governor Kenneth Lusaka said county assemblies should not be allowed to abuse their office.

“This is a very dangerous precedent we are setting at the counties. And when the Governor has to go, he has to go with the Deputy Governor, the executive and CPSB,” noted Lusaka. “This exercise should be undertaken with caution, good intention and not driven by malice.” Lusaka called for patience as devolution takes hold “We are in a learning phase, and this dangerous precedent set by the County legislature will prevent the County executive from initiating development and improving the lives of the residents of respective counties.”

Unrealistic moves

Lusaka said some of the expectations of MCAs were unrealistic and noted that even in developed countries like the US which has had a devolved structure for 200 years, there have been only 10 impeachments.

“We must exercise caution in handling matters in counties as this might affect the performance of country and prevent governors from realising their campaign pledges,” he said.

 The groundswell of opposition to impeachments has continued to grow from experts with Waiganjo warning that County Assemblies are flouting the Constitution and said their actions bordered on abuse of office.

“The County Assemblies have powers but these powers must be used responsibly and judiciously,” he observed. “There must be a threshold and MCAs should not be allowed to use their offices to seek personal gain at the expense of their constituents.”

 Waiganjo said the law should be reviewed to check the excesses of the county legislatures and seal the loopholes that the MCAs exploit to hold the executive to ransom in discharging their constitutional mandate of oversight. “It will reach a situation where all stakeholders must sit down and re-look this law and set certain thresholds,” said Waiganjo.

Transition Authority chairman Wamwangi said MCAs were becoming the biggest threat to devolution going by the growing number of impeachment Motions they initiate against county executive offices.

“It is regrettable that MCAs are using the impeachment process as their first line of action, instead of being a tool of last resort,” Wamwangi noted.

Wamatangi, who was the vice chairman of the Senate special committee that heard the Wambora case in the first impeachment, admits that the trend is worrying, and if not checked, counties will not deliver.

“MCAs should exhaust all dispute resolution mechanisms before they can invoke and initiate an impeachment petition against a governor. Dialogue should prevail,” he said.

To stem the impeachment cases, the Controller of Budget Agnes Odhiambo wants to see more involvement by members of the county executive in the decision-making process.

She called on county lawmakers to stop making unilateral decisions to sack county officials, and instead engage in more consultations or invoke other mechanisms for dispute resolutions. “If there are genuine cases of corruption and mismanagement, they (county assemblies) should invite relevant investigative agencies to conduct a thorough probe and take appropriate action based on these findings,” she advised.

County Assemblies Forum (CAF) Secretary General Albert Kochei also says the Executive will continue to work unhindered as long as County Assemblies operate within the legal framework. He emphasised that by law, the county legislatures are mandated to check the excess powers of the executive, though it has been a challenge differentiating between their supervisory and oversight roles. Some leaders believe the excessive actions of MCAs could come as a result of ignorance.

“Majority want clarification on their queries and therefore counties should put in place a framework for consultations as lack of information brings doubt,” says the Elegyo/Maraket County Assembly Speaker.