MPs do not have the Power to Impeach Waiguru

High Court Judge Joseph Onguto recently gave the order barring the National Assembly from debating the motion to impeach Ms. Waiguru, after the Commission for the Implementation of the Constitution (CIC) sought the advice of the court regarding the fairness of the parliamentary guidelines that allow MPs to impeach Cabinet secretaries.

CIC filed the urgent case arguing that Section 66 of the National Assembly Standing Orders that provides the procedure for removing a Cabinet secretary was unconstitutional hence should be declared null and void. The order is, however, temporary until the petition is determined.

Nonetheless, one can predict the outcome of the case since a precedent had been set by another High Court Judge named Alfred Mabeya with regard to the County Assemblies in October last year. In his ruling, Justice Alfred Mabeya declared Section 40(3) of the County Governments Act unconstitutional on the basis that the provision negates the principle of independence and impartiality as stipulated in Article 50(1) of the Constitution.

Section 40(3) of the County Governments Act permitted the county assembly to establish a select committee comprising five of its members to investigate and report on whether any allegations brought up by an assembly member upon any county executive are substantiated or not.

The declaration was made after an executive member of Bungoma, Stephen Peter Nendela, moved to court seeking for orders barring the Bungoma MCAs from impeaching him.

Justice Alfred Mabeya argued that, because the county assembly is an interested party in a situation where any one of its members lodges a motion of dismissal against a county executive member, the manner in which the select committee is formed leads to conflict of interest. This would translate to the accused being denied a fair hearing.

Justice Mabeya hence directed parliament to enact a law that provides for a separate, independent and impartial body that would investigate allegations against county executives once the county assembly passes a motion of impeachment under Section 40(2) of the County Governments Act. This independent body would then be mandated to investigate and report findings to the assembly before a vote was taken.

As of now, parliament is yet to honour this directive. Therefore, county assemblies lack the power to impeach County Executive Committee Members because the separate, independent and impartial body that would investigate allegations against county executives does not exist. CIC argued its case regarding the Cabinet Secretaries on the same premise. CIC holds that Section 66 of the National Assembly Standing Orders is inconsistent with Article 50 of the Constitution, thereby denying the accused the right to a fair trial.

Justice Alfred Mabeya made it clear that the county assemblies cannot be both the jury and the executioner in matters regarding the impeachment of county executive members. CIC also argues that the parliamentary provisions on the impeachment of cabinet secretaries make the National Assembly the “complainant, investigator, prosecutor and executor” of its own resolutions. CIC now wants the National Assembly Standing Order 66 to be declared null and void.

If we carefully consider the declaration by Justice Alfred Mabeya with regard to the petition lodged by Mr. Nendela, it would apply (with the necessary changes being made) to the National Assembly with regard to the case facing Madam Waiguru. This simply means that parliament also lacks the authority to impeach any cabinet secretary under the current legal provisions. It should therefore work on the mechanism of establishing the independent body that would accord fair trial to the accused cabinet secretaries.

Otherwise, that being said, let us now await the determination by Justice Onguto and see if it will honour the precedent set by Justice Mabeya or if it will prove otherwise.