Why we must review bid to send governors home in BBI Season II

The ongoing impeachment of Meru Governor Kawira Mwangaza brings to the fore aspects of our governance architecture which I believe requires rethink, especially if BBI 2 will find traction.

In our constitutional design, we gave the legislature at the national level, power to impeach and send home the President and the Deputy. We replicated the same at the county level, empowering MCAs to impeach governors and their deputies but reserving the final power of removal to the Senate. Since 2010, there has not even been one motion to impeach the president or deputy.

On the contrary, there were 20 attempts at impeachment of governors in the 2013-2021 electoral seasons. Of these, 14 were stopped at the county assembly either by courts or through political settlements. Seven impeachments were submitted to the Senate for "trial". Three petitions were dismissed by the Senate for failure of the county assemblies to prove the impeachment charges or for procedural infractions.

The Senate voted to remove four governors from office. Two of these removals were reversed by the courts for procedural and substantive breaches by the Senate and the respective county assemblies. Two governors were successfully removed.

We are barely four months since the 2022 elections and our first impeachment is already at the Senate. The small number of governors actually sent home may point to adequate procedural safeguards in the removal process.

However, the disruption from the impeachment processes can be expensive on any county. In the Wajir case that was eventually overturned by the courts, the process took about 10 months.

In that time, operations at the county were paralysed and the county never recovered until after the 2022 elections. The main concern with these impeachments is that in most of them, the constitutional grounds are just the ostensible reason for removal. Hidden behind these high-sounding constitutional arguments are collateral objectives, usually of a political or fiscal nature. Evidence will for instance show that most impeachments occur after fights over budget between MCAs and the Executive, usually because the Executive is refusing to allocate sufficient funds to MCAs or denying them "procurement power".

Other governors are impeached as collateral damage in national political wars. It is no wonder that in the 2021 removals, both governors were intricately aligned to the UDA wing of Jubilee. Impeachments have therefore become a weapon, not to achieve constitutional accountability, but to punish political and financial mis-alignment.

Is it then time to rethink the entire impeachment system? Supporters of impeachment point to its necessity in holding rogue members of the Executive accountable lest they injure public interest.

In their view, the acts of MCAs are acts of the people, since they sit in the assemblies on behalf of the people. While this is a logical argument in a representative democracy, the challenge is the constant misuse of this power especially because the grounds of impeachment remain fluid.

MCAs can decide that any minor infraction is a "gross violation of the Constitution or the law" and proceed to impeach on it. Would a requirement that determination of the violation threshold be decided by a court or similar tribunal cure this defect?

It is interesting that the law on recall of MPs, required that the question of whether there were sufficient grounds to recall an MP needed to be decided by the courts before recall proceedings could be commenced. Should this be replicated for governors?

But even more fundamentally, what is the role of electors in the impeachment process? How do we ensure a popular governor, providing the required leadership, is not impeached by MCAs in pursuit of their interests, not that of the public?

No one, for instance, doubts that Governor Kawira is popular with the electors, but this cannot stop her from being sent home. While the current laws require public participation, the same is largely tokenistic and the electors are mere bystanders in the process of removing a leader they elected.

Is it time to rethink impeachment and opt for recall, where the people make the ultimate decision on whether to send the leaders they elected back home? Over to BBI Season Two.

The writer is an advocate of the High Court of Kenya