Why the impeachment of Meru Governor raised novel issues

The Constitution introduced the impeachment of Governors as a tool for oversight with far reaching ramifications for any leader subjected to such a process. It is a crucial tool that must be safeguarded and reserved as a measure of last resort, only in cases of gross misconduct and gross violation of the Constitution as envisioned under Article 181 of the Constitution. It is not an option of the first instance for any grievance a trigger-happy County Assembly may have against a duly elected Governor. The threshold for impeachment should not be lowered for political expediency, a fact that the Senate of Kenya has restated with precision. The Court of Appeal in the 2014 case of Governor Wambora was emphatic that not every violation of the Constitution amounts to gross misconduct. A gross violation of the Constitution must be so gross, that it renders the other organs under the Constitution, unworkable.

Why the impeachment of Meru Governor raised novel issuesWas it a case of using impeachment as a political weapon or was it genuinely used as an oversight tool?

However, before Governor  Mwangaza could settle in office or even fully form her government, an impeachment motion came calling, albeit too early. It was a culmination of weeks and months of simmering political wrangles between the Governor and the County Assembly. The impeachment process was approved by almost all the Members of the County Assembly, having been reinforced by a strong party mobilization led by the Majority Chief Whip.  

However, the Senator Khalwale-led Committee of the Senate was not amused and put the first and last nail in the coffin of the motion. Although the impeachment process did not see the light of day at the Senate, it has brought up pertinent policy and legal issues of concern for a strong devolution in Kenya.

Firstly, almost a decade after the Wambora case in 2014, there has been no attempt to even define, through legislation, what qualifies as gross violation or gross misconduct that would meet the threshold of impeaching a Governor. The lack of a legal framework addressing the threshold has left most Governors exposed and at the mercy of trigger-happy MCAs who are quick to elevate every deed, action or inaction as gross violation or gross misconduct.  

Secondly, the role of First Gentlemen has become more pronounced, some may be wondering whether it should be defined in law. As Kenyans continue electing more women Governors, more First Gentlemen are taking the centre stage in Governance and their role is not pronounced in law, leaving it to the discretion and wisdom of Governors. First Gentlemen may be strong-willed and more visible, and can be easily accused of acting like co-governors. It should be noteworthy that men are naturally leaders at home and the change of roles in County Governance is a new domain that might not be easy to handle for some. This could explain why the role of the First Gentlemen for close couples may come out more pronounced than that of their female counterparts.

The First Gentleman in Meru County became the central subject of the dispute between the County Assembly and the Governor. Among the grounds for impeachment was an alleged appointment of the husband as the Ambassador for Meru hustlers and Patron for Meru Youth Service. According to the MCAs in Meru, this was an act of nepotism, illegal appointment and usurpation of roles of the county and statutory bodies. The Senate did not think so and the charge was found not to have been substantiated.  

With such developments, perhaps the law should circumscribe the roles of First Gentlemen and First Ladies at the County Level to guide Governors on how to benefit from the support of their spouses without offending the law. It should not be lost on policymakers that elected Governors cannot keep off their spouses from the public at ease. The Governor and her spouse are a couple and the influence of first spouses should be defined rather than assumed.

Thirdly, the need to protect independent Governors against a united majority and minority side in the County Assembly emerged. Governor Mwangaza was elected on an independent ticket, without any similar number of MCAs at the County Assembly. The Constitution of Kenya anticipated such a scenario by granting a right for Gubernatorial Candidates to vie on independent tickets. The question of how such a Governor would run a county government with both sides of the house united against them was not anticipated.

The Constitution sets out the roles of a County Assembly, to be discharged objectively regardless of political party affiliation. However, the practice is different in Kenyan politics and a Governor must have loyalty from MCAs to run the affairs of the County. This becomes more difficult for a Governor who has no political party affiliation, a fate that befell Governor Mwangaza. Such a scenario if not checked will make it impossible to have independent Governors running a full term of their election unless the law addresses this reality.

Fourthly, the timespan within which an elected Governor can be impeached has been under scrutiny. The County Assembly of Meru argued that to say it is too early for impeachment would be tantamount to granting Governors a period of temporary impunity. However, this reasoning assumes that impeachment is the only option for the redress of violations of the law. It should be noted that an impeachment is a tool of last resort and an argument for a period of protection against impeachment is not a licence for illegality or impunity.

Section 27 of the County Governments Act protects MCAs against recall by the electorate until after a period of two years. This must have been an intention to give elected leaders a chance to prove their leadership with time. Curiously, such protection is not granted to Governors and perhaps there is a need for an amendment of the County Governments Act to grant Governors this same protection, without watering down the power of impeachment. To subject Governors to a different standard is an anomaly that was not intended in the law.

Governor Kawira was impeached in a record time of 112 days since being sworn into office. This timespan has sparked a debate on the need to protect Governors from being hounded out of office within a very short time even before they have made any significant decisions. To remove a popularly elected leader from office in such a short period as three months is seen as an affront against the will of the people, yet the Constitution of Kenya 2010 makes it supreme.

We hope that the attempted impeachment of Governor Mwangaza will serve as a lesson that will strengthen devolution. The law never anticipates all scenarios and such incidences should give a fresh breath to the law.

Elias Mutuma, Evans Mwangi and Robert Mutembei acted as Legal Counsels for Her Excellency Governor Kawira Mwangaza during the impeachment proceedings at the Senate

Hon. Mwangaza was elected the Governor of Meru, to her credit, on an independent ticket as a woman in the strongly patriarchal society of Meru. Her election raised the profile of women leadership in Meru politics, following the history of Anarita Karimi, the first woman MP in the region who was unfortunately hounded out of office in a similar conspiracy.   

However, before Governor  Mwangaza could settle in office or even fully form her government, an impeachment motion came calling, albeit too early. It was a culmination of weeks and months of simmering political wrangles between the Governor and the County Assembly. The impeachment process was approved by almost all the Members of the County Assembly, having been reinforced by a strong party mobilization led by the Majority Chief Whip.  

However, the Senator Khalwale-led Committee of the Senate was not amused and put the first and last nail in the coffin of the motion. Although the impeachment process did not see the light of day at the Senate, it has brought up pertinent policy and legal issues of concern for a strong devolution in Kenya.

Firstly, almost a decade after the Wambora case in 2014, there has been no attempt to even define, through legislation, what qualifies as gross violation or gross misconduct that would meet the threshold of impeaching a Governor. The lack of a legal framework addressing the threshold has left most Governors exposed and at the mercy of trigger-happy MCAs who are quick to elevate every deed, action or inaction as gross violation or gross misconduct.  

Secondly, the role of First Gentlemen has become more pronounced, some may be wondering whether it should be defined in law. As Kenyans continue electing more women Governors, more First Gentlemen are taking the centre stage in Governance and their role is not pronounced in law, leaving it to the discretion and wisdom of Governors. First Gentlemen may be strong-willed and more visible, and can be easily accused of acting like co-governors. It should be noteworthy that men are naturally leaders at home and the change of roles in County Governance is a new domain that might not be easy to handle for some. This could explain why the role of the First Gentlemen for close couples may come out more pronounced than that of their female counterparts.

The First Gentleman in Meru County became the central subject of the dispute between the County Assembly and the Governor. Among the grounds for impeachment was an alleged appointment of the husband as the Ambassador for Meru hustlers and Patron for Meru Youth Service. According to the MCAs in Meru, this was an act of nepotism, illegal appointment and usurpation of roles of the county and statutory bodies. The Senate did not think so and the charge was found not to have been substantiated.  

With such developments, perhaps the law should circumscribe the roles of First Gentlemen and First Ladies at the County Level to guide Governors on how to benefit from the support of their spouses without offending the law. It should not be lost on policymakers that elected Governors cannot keep off their spouses from the public at ease. The Governor and her spouse are a couple and the influence of first spouses should be defined rather than assumed.

Thirdly, the need to protect independent Governors against a united majority and minority side in the County Assembly emerged. Governor Mwangaza was elected on an independent ticket, without any similar number of MCAs at the County Assembly. The Constitution of Kenya anticipated such a scenario by granting a right for Gubernatorial Candidates to vie on independent tickets. The question of how such a Governor would run a county government with both sides of the house united against them was not anticipated.

The Constitution sets out the roles of a County Assembly, to be discharged objectively regardless of political party affiliation. However, the practice is different in Kenyan politics and a Governor must have loyalty from MCAs to run the affairs of the County. This becomes more difficult for a Governor who has no political party affiliation, a fate that befell Governor Mwangaza. Such a scenario if not checked will make it impossible to have independent Governors running a full term of their election unless the law addresses this reality.

Fourthly, the timespan within which an elected Governor can be impeached has been under scrutiny. The County Assembly of Meru argued that to say it is too early for impeachment would be tantamount to granting Governors a period of temporary impunity. However, this reasoning assumes that impeachment is the only option for the redress of violations of the law. It should be noted that an impeachment is a tool of last resort and an argument for a period of protection against impeachment is not a licence for illegality or impunity.

Section 27 of the County Governments Act protects MCAs against recall by the electorate until after a period of two years. This must have been an intention to give elected leaders a chance to prove their leadership with time. Curiously, such protection is not granted to Governors and perhaps there is a need for an amendment of the County Governments Act to grant Governors this same protection, without watering down the power of impeachment. To subject Governors to a different standard is an anomaly that was not intended in the law.

Governor Kawira was impeached in a record time of 112 days since being sworn into office. This timespan has sparked a debate on the need to protect Governors from being hounded out of office within a very short time even before they have made any significant decisions. To remove a popularly elected leader from office in such a short period as three months is seen as an affront against the will of the people, yet the Constitution of Kenya 2010 makes it supreme.

We hope that the attempted impeachment of Governor Mwangaza will serve as a lesson that will strengthen devolution. The law never anticipates all scenarios and such incidences should give a fresh breath to the law.

Elias Mutuma, Evans Mwangi and Robert Mutembei acted as Legal Counsels for Her Excellency Governor Kawira Mwangaza during the impeachment proceedings at the Senate

Elias Mutuma
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Guest author The Platform Magazine

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