Kethi: Impeachment firmly grounded in law

By Kethi D Kilonzo
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Did you know that Members of Parliament can impeach the President or his deputy? They have the same powers to check the Executive at the national level as the Members of the County Assembly do at the county level.

There is lack of appreciation of the constitutional and legal foundation for the necessity of such powers. The word “impeachment” derives from Latin roots expressing the idea of becoming caught or entrapped. It is a formal process in which an official is accused of unlawful activity, the outcome of which, may include the removal of that official from office.

The Constitution of Kenya adopts two levels of government.  National and the County government. Each level of Government has three arms. The Judiciary, the Executive and Parliament.

The President, his Deputy and Cabinet Secretaries comprise the Executive of the national government. At the county level it comprises the Governor and members of the County Executive Committee.

Whereas the Senate and the National Assembly constitute Parliament for the national government, at the county level this role is placed on the County Assembly. The Judiciary is shared by both levels of Government.

Under Articles 145 and 150 of the Constitution, any MP, with the support of a third of all members of the National Assembly, can move a Motion for the impeachment of the President or his deputy. The Motion can be made on any or more of the following grounds: (1) gross violation of a provision of the Constitution or any law; (2) gross misconduct; or (3) if there is serious reason for believing that the President or his deputy have committed a crime under national or international law. 

Once such a Motion receives the support of two-thirds of all members, notice of the resolution is given to the Senate which will hear the charges, sitting either as a house or through a special committee. The Senate will then take a vote, and if two thirds of all Senators vote to uphold any impeachment charge, the President or his deputy will cease to hold office.

The power of the County Assembly to move a Motion to impeach a governor is no different from that exercised by the National Assembly. It has the same constitutional foundation. The procedure is also the same.

Article 181 of the Constitution provides that a county governor may be removed on four grounds: (1) gross violation of the Constitution or any other law; (2) where there are serious grounds for believing the governor has committed a crime under national or international law; (3) abuse of office or gross misconduct; (4) physical or mental incapacity to perform his functions.  Under Section 33 of the County Government Act any MCA can, with the support of a third of all members of the Assembly, move a Motion to impeach the governor. Such a Motion requires the support of two thirds of the members.

Once passed, the resolution is forwarded to the Senate, who may constitute a committee to investigate the matter, and take a vote. If the majority of Senators vote to uphold the charges, the governor ceases to hold office.

At both the national and county level, the Executive is answerable to the national or county assemblies through the impeachment process. It is true that this power can be abused by MCAs. But the law provides a check for any such abuses. Senators investigate the charges themselves, afresh, and take a vote on it by majority. If Senate oversteps its limit the Judiciary has the final say.

Where circumstances call for it, County Assemblies should not shy away from removing any member of the county Executive who is not up to scratch.