Why attempt to remove Kidero will flop

Once again the obsession with impeaching governors has erupted, this time in Nairobi City County.

Coming so soon after Nyeri Governor Nderitu Gachagua survived a spirited attempt to remove him from office, it wouldn’t be far-fetched to predict that as the 2017 elections draw nearer, more governors will be kept on  tenterhooks by their legislative assemblies.

After the failed first attempt to table a motion calling for the removal of Evans Kidero as the governor of Nairobi, Viwandani ward representative Samuel Nyang’wara finally had his way.

Mr Nyang’wara was elected on an Orange Democratic Movement party ticket but has since shifted allegiance to the newly launched Jubilee Party.

Article 181 of the Constitution provides grounds on which a governor may be removed from office, and the power to initiate the process is vested in MCAs.

The grounds include gross violation of the Constitution or any other written law, abuse of office and gross misconduct.

MCAs can also initiate impeachment proceedings against a governor if there are serious reasons to believe that he or she has committed a crime under national or international law or has become physically or mentally incapable of performing the functions of the office of governor.

But it is Section 33 of the County Government Act 2012 that fleshes out the finer nuances of county governance and that provides in greater detail how the impeachment process should be undertaken.

It stipulates that a Member of the County Assembly may table a motion calling for the impeachment of a governor after getting the support of one-third of all members to initiate the process.

If the motion receives the support of at least two-thirds of all members of the assembly, the speaker of the county assembly shall inform the speaker of the Senate of that resolution within two days.

Once the speaker of the Senate receives the resolution, the he or she is required to convene a sitting of the Senate within seven days to hear the charges levelled against the governor, and by a resolution of the Senate form a special committee of 11 members to investigate the matter.

All this while, the governor continues to perform the functions of the office pending the outcome of Senate proceedings. Put differently, the powers to impeach a governor are shared between the county assembly, the Senate, the head of state and the people, and are not the preserve of MCAs as they often seem to think.

The rationale behind this power sharing in the removal of a governor is found in the provisions of Article 10 of the Constitution, particularly those that speak about sharing and devolution of power, the rule of law, democracy and participation of the people.

It is partly on the basis of these values and principles of governance that the Court of Appeal quashed a resolution of the County Assembly of Embu, the Senate and the High Court to uphold the impeachment of the county’s governor, Martin Wambora, in 2014.

Mr Wambora was the first governor to face the wrath of his county assembly, but MCAs in other counties that have also attempted to impeach their governors seem not to have learned any lessons.

In Wambora’s case, some members of the public went to court on grounds that as voters who had participated in the election of the governor, they had not been consulted or involved by their MCAs in the impeachment of the governor.

Further, Chapter 11 of the Constitution is explicit on the objects of devolution of government. Top on the list are the promotion of democratic and accountable exercise of power, giving powers of self-governance to the people and enhancing the participation of the people in the exercise of powers of the state, and in making decisions affecting them.

Thus, MCAs must not lose sight of the constitutional imperative to consult voters in the affected county, and must secure their consensus on why the governor must be impeached and not reprimanded through other existing mechanisms.

MCAs also have precedents to assess their chances of prosecuting their impeachment charges to more logical conclusions.

Decisions of the Senate or the President as the case may be on attempts to impeach the governors of Embu, Makueni and Nyeri counties provide priceless lessons for Nairobi MCAs.

But like their counterparts who have ears but did not hear, and have eyes but did not see; the efforts of the Nairobi MCAs will also flop.