A Critique of the Constitutional and Legislative Framework in Kenya. For the Impeachment of County Governors

LIST OF ABBREVIATIONS

TABLE OF CONTENTS

DEDICATION

ACKNOWLEDGMENTS

ABSTRACT

LIST OF STATUTES

LIST OF CASES

LIST OF ABBREVIATIONS

CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
1.2 Statement of the problem
1.3 Research Questions
1.4 Research Hypothesis
1.5 Research Objectives
1.6 Theoretical Framework
1.7 Justification of the Study
1.8 Scope of the Study
1.9 Research Methodology
1.10 Limitations of the Study
1.11 Literature Review
1.12 Chapter Breakdown

CHAPTER TWO
CONSTITUTIONAL, LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE IMPEACHMENT OF COUNTY GOVERNORS
2.1 Introduction
2.2 Constitutional and Legal Framework for the Impeachment of County Governors
2.2.1 The Constitution of Kenya, 2010
2.2.1.1 National Values and Principles of Governance
2.2.1.2 Grounds for the Impeachment of County Governors
2.2.1.3 Leadership and Integrity
2.2.1.4 Values and Principles of Public Service
2.2.1.5 Enactment of Legislation providing for the Procedure of Removal of a County Governor
2.2.2 The County Governments Act, 2012
2.2.3 The Senate Standing Orders
2.2.4 County Assemblies’ Standing Orders
2.3 Institutional Framework for the Impeachment of County Governors
2.3.1 The Role of the County Assembly (CA)
2.3.1.1 The Role of the CA to Initiate the Impeachment Motion against the Governor
2.3.1.2 The Role of the CA to Inform the County Governor of the Impeachment Charges and Hear the Governor
2.3.1.3 The Role of the CA to either Pass or Fail the Impeachment Resolution
2.3.1.4 The Role of the Speaker of the respective CA to inform the Speaker of the Senate of the Impeachment Resolution
2.3.1.5 The Role of the CA to appear before the Senate
2.3.2 The Role of the Senate
2.3.2.1 The Role of the Speaker of the Senate to Inform the Senators of the Impeachment Resolution
2.3.2.2 The Role of the Senate to appoint a Special Committee
2.3.2.3 The Role of the Special Committee or Senate in plenary to investigate the Impeachment Charges against the Governor
2.3.2.4 The Role of the Senate to Hear the Governor facing the Impeachment Charges ..
2.3.2.5 The Role of the Senate to either Pass or Fail the Impeachment Resolution
2.3.3 The Role of the Courts
2.3.3.1 The Role of the Courts to Interpret Impeachment Provisions
2.3.3.2 The Role of the Courts to Supervise the Process of Impeachment
2.4 Conclusion

CHAPTER THREE
THE EMERGING ISSUES FROM THE GUBERNATORIAL IMPEACHMENT CASES IN KENYA SINCE 2013
3.1 Introduction
3.2 The Emerging Issues from the Gubernatorial Impeachment Cases in Kenya since
3.2.1 Whether Impeachment is a legal or political process
3.2.1.1 Justiciability of the Removal Process
3.2.2 What amounts to gross misconduct, gross violation of the Constitution or any other written law and abuse of office?
3.2.3 The Right to Public Participation in the Removal Process of a County Governor through Impeachment
3.2.3.1 What amounts to Public Participation?
3.2.3.2 Limitation of Time for the Public to be able to participate in the Gubernatorial Impeachment Process
3.3 Conclusion

CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Introduction
4.2 Conclusion
4.3 Recommendations

BIBLIOGRAPHY

DEDICATION

To God! To Dad for all the sacrifices; for taking me to Law School. Asandi Muno (thank you so much)! To Mum for her enduring love, support and prayers. I love you Mama! To Family. To Friends. To all Constitutionalists and Devolutionists. For the love of country; to the National Assembly, to the Senate and to all the 47 County Governments of Kenya.

ACKNOWLEDGMENTS

We live and work in societies, and many of our individual achievements would be impossible without the support and contribution of many other people. This is the case here, too, as my efforts received much support from many whom I must acknowledge.

I would like to thank the Almighty God for giving me the strength and intellectual power to complete this legal research paper. The completion of this research paper would not have been successful without the efforts of several people. To my dear Parents, I offer my sincere gratitude to you for your moral, financial and material support that you have been providing me with in my education from an early age. Indeed, you have been a source of inspiration to my life! I also acknowledge my brothers and sisters: Ken Mutinda, Raymond Mutinda, Sylvia Mutinda, Debra Mutinda, Daisy Mutinda, Edna Mutinda and Brian Mutinda who in one way or another encouraged me to employ the best possible efforts in this research paper. To my cousins: Miriam Yula, Brigid Ngina, Tabitha Kioko, Elizabeth Nthenya, Getrude Musyoki, thank you on behalf of all my cousins out there for your moral support through calls and text messages. To you I am indebted!

I would like to thank the teaching staff of Moi University, School of Law for imparting fundamental legal knowledge in me that has greatly aided me in pursuing this research paper. I wish to acknowledge the invaluable assistance and guidance of Mr. Joshua M. Ngulu who supervised the carrying on of this study to completion. Special gratitude goes to the supervisor for his unending support and guidance in writing this paper despite having a busy schedule both as a Lecturer and practicing Advocate. As the old Swahili saying goes: Samaki mkunje angali mbichi (Fold the fish while it is still fresh or raw), the supervisor had the opportunity to fold me and I’m glad for having learnt good research skills from him in the very beginning of my career. I was also privileged to attend all the classes and seminars on ‘Devolution and Counties Law,’ in my third year of study where my knowledge on Devolution Law was concretised. Special thanks to Dr. Mutakha Kangu, who taught us ‘Devolution and Counties Law.’ I would also like to recognize Lecturer Ms. Irene Maithya for her moral support to me during my campus studies. Thank you Ma’am! Special thanks goes to the Librarians lead by Mrs. Loise Ataro and Ms. Samoei for their insurances that we got the necessary materials needed for our research works. Indeed, kongoi sana (thank you so much)!

To all my friends: Mr. Martin Musundi, Brian Nyale, Kevin Onyango, Sharon Chebet, Sharon Langa’t, Mama Tusu and her entire family, Geoffrey Kimatu, Grace Mwikali, Yvonne Wanjiru, Maureen Wayua, Leonard Muye, Vujeri Mandela, Faith Mutua, Michael Tuwei, Dennis Mulwa, Nahashon Kithome, Ann Wambui, Fionah Rachel, Christine Wambugu, Rehema Wanjiku, Bilhah Sidi, Grace Kiamba, Robert, Frank, Maureen Kawira, Jefferson Mwalili, Nelson Kiprono, Davis Kiprono and many others that I cannot mention by name who in diverse ways helped me throughout my research work, I say, thank you! I’m indebted to you for your encouragement and support when I almost gave up in my legal studies. Thank you all, one love!

ABSTRACT

This legal research paper investigates the gubernatorial impeachment motions, proceedings and cases in the Kenyan devolved system since 2013 when the first governments took power under the new Constitution of Kenya, 2010. The constitutional, legal and institutional framework for the removal of county Governors from office through impeachment in the Kenyan devolved system is examined. The removal process of county Governors effectively for the realization of the objects of devolution in Kenya is accessed. Nigerian jurisprudence on gubernatorial impeachment is used because it provides instructive lessons on interpreting the Kenyan constitutional provisions on the removal of county Governors through impeachment.

The result of this study is that the gubernatorial impeachment process in the Kenyan devolved system is a three-way process. The starting point is the County Assembly (CA) where the Member of County Assembly can table an impeachment motion against the county Governor. Secondly, should the impeachment motion succeed against the sitting county Governor, the Speaker of the CA forwards the resolution to the Senators who then investigate the impeachment claims made against the county Governor. Lastly, where the county Governor facing impeachment proceedings feels that their rights are being violated and or the CA and Senate are not following the stipulated procedure, they are allowed to access the courts to be granted appropriate reliefs. The jurisprudence emerging from the Kenyan courts has been useful in this research. Nigerian jurisprudence on gubernatorial impeachment has also been useful on providing instructive lessons on how the Kenyan constitutional provisions on the removal of county Governors from office can be interpreted. This legal research paper concludes that for the intended purpose of gubernatorial impeachment to be achieved, the people must not only be informed and involved in the removal process of their county Governors but the CAs and Senators must also demonstrate political goodwill while conducting this constitutional process. This is because one of the ways through which the objects of devolution can be achieved in the Kenyan devolved system is through accountable governance from the State Officers.

LIST OF STATUTES

Kenya

Constitution of Kenya 2010

County Governments Act of 2012

Public Finance Management Act

Impeachment Procedure Bill 2016

Transition to Devolved Government Act of 2012

Ethics and Anti-Corruption Commission Act of 2012

High Court (Organisation and Administration) Act No-27 of 2015

Nigeria

The Constitution of the Republic of Nigeria 1999

LIST OF CASES

Kenya

Speakers of the 47 County Assemblies v Commission on the Implementation of the Constitution & 2 Others, Supreme Court Advisory Opinion Reference No. 3 of 2014 2016 eKLR.

Michael Manthi Kisoi v Commission of Inquiry into the Petition to Suspend Makueni County Government & 8 Others 2015 eKLR, Nairobi High Court Constitutional Petition No. 158 of 2015.

Martin Nyaga Wambora v Speaker County Assembly of Embu & 5 others 2014 eKLR.

Justus Kariuki Mate & another v Martin Nyaga Wambora & another 2017 eKLR.

Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others 2014 eKLR, Nyeri High Court Civil Appeal No. 21 of 2014.

In re Speaker, County Assembly of Embu 2018 eKLR, Supreme Court Reference No. 1 of 2015.

In the Matter of the Interim Independent Electoral Commission 2014 eKLR.

International Legal Consultancy Group v Senate & Clerk of the Senate, Constitutional Petition No. 8 of 2014 eKLR.

Amina Rashid Masoud v Governor Lamu County & 3 others 2016 eKLR, Malindi High Court Petition No. 10 of 2016.

Secretary Isiolo County Assembly & 2 Others v Speaker (Mohammed Tubi) Isiolo County Assembly 2014 eKLR.

Robert N. Gakuru & Others v Governor, Kiambu County 2014 eKLR.

Nigeria

Hon. Muyiwa Inakoju & Others v Hon. Abraham Adeolu Adekele Supreme Court 272/2006 (unreported).

South Africa

Doctors for Life International v Speaker of the National Assembly and others (CCT 12/05) 2006 ZACC 11.

Poverty Alleviation Network & Others vs. President of the Republic of South Africa & 19 others CCT86/08 2010 ZACC 5.

United States

Marbury v Madison 5 U.S 137, 1803.

Walter L Nixon v United States 506 US 224 (1993).

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

Kenya as a Republic¹ adopted a new Constitution on 27th August, 2010 with devolution of political power, functions and resources to the newly formed forty seven counties being one of its most transformative aspect.² Devolution was seen as a good solution to the problems of marginalisation, inadequate service delivery and regional disparities in development which was associated with the highly centralised system of government.³ With devolution, two levels of government were created: the national and county governments⁴ which are ‘distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.’⁵ Based on the foregoing, it is evident that three arms of government; the senate, at the national level⁶ and the County Assembly (CA) and an executive arm of government at the county level of government were born.⁷

Unlike the Independence Constitution, the Constitution of Kenya (CoK), 2010 came up with ‘appropriate checks and balances and separation of powers to ensure a sound democratic J.O Ambani, The New Constitutional Law of Kenya: Principles, Government and Human Rights (2013) Law Africa 17 [Mbondenyi & Ambani (2013)] explains that in a Republic the people play a central role in governance because it is they who emanate the authority which the leaders exercise on their behalf and the government is meant to serve their welfare.

Rights(1998) 14 defines transformative constitutionalism to mean ‘a long-term project of constitutional enactment, interpretation and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction….connotes an enterprise of inducing large scale social change through non-violent political processes grounded in law.’ presidential system of governance of the people of Kenya.’⁸ With these principles of separation of powers and checks and balances, is the role of oversight by the legislative bodies over the executive arms of government. This role of oversight is meant to provide a transparent, accountable government to the electorates as is required of State officers and State organs.⁹ Among the mechanisms of ensuring accountable leadership is the power of calling for the removal from office of a public official by a legislature, impeachment.¹⁰ The CoK, 2010 firmly puts the grounds for impeachment of a governor to be inter alia gross violation of the Constitution or any other law or where there are serious reasons for believing that the county Governor has committed a crime under national or international law or abuse of office or gross misconduct.¹¹

The Senate and CAs have been tasked with among other roles, that of removal of a county Governor from office through impeachment. The CA is mandated with the role of commencing the impeachment proceedings by tabling a motion to the Speaker of the CA by way of notice for the removal of the Governor.¹² For the impeachment motion to be successful and move to the Senate, it has to be supported by at least two-thirds of all the Members of the County Assembly (MCAs). The Speaker of the CA is then required to inform the Speaker of the Senate of that resolution while the Governor continues to perform the functions of the office pending the outcome of the proceedings.¹³ The Speaker of the Senate then convenes a meeting of the Senate to hear the charges against the Governor within seven days and may then appoint a special committee comprising of eleven of its members to investigate the matter.¹⁴ The Governor in question should be notified of the intention to be removed from office and has the right to appear and be represented before the special committee during such investigations.¹⁵

As shown above, the Kenyan constitutional and legislative have provided for the grounds and procedure for conducting impeachment of Governors under the CoK, 2010 and County Governments Act (CGA)¹⁶. The Impeachment Procedure Bill 2016¹⁷ also proposes to have procedures of removal from office of various members of the executive branches of government including the President, Deputy President, Cabinet Secretary, Governor, Deputy Governor and Chief Executive Committee (CEC) Members under one Act of Parliament. Although an impeachment claim is not justiciable¹⁸, the courts are not completely excluded from impeachment proceedings. Their supervisory role in nature is required in ensuring that the procedural law for the purposes of removal of a Governor from office is not violated by the CA and Senate in arriving at their decision is required.¹⁹ This ensures that the rights of the Governor in question among them the right of fair administrative action²⁰ and that of fair hearing²¹ are observed.

Despite the clear process of removal of a County Governor from office provided by legislation, some legislators have used this process for selfish interests.²² Indeed impeachment has been said to double up as a legal and political action since the standard of conduct is not narrowly legal but also political as it comprises of politicians judging other politicians and imposing political punishments on them- removal from office.²³ MCAs have been accused of driving political agendas through impeachment motions against the county executives.²⁴ There have also been claims that the MCAs’ clamour for allowances, personal assistants and overseas trips has fuelled some of the impeachment motions when these demands are not met by chief executives.²⁵ For example, in the first impeachment motion against the county Governor of Embu²⁶, (Wambora I), it was alleged that the Governor had been uncooperative regarding recruitment and payment schemes of salaries payable to persons employed in the County Assembly Service Board (CASB). Apparently, the Governor had relied upon the advice of the Salaries and Remuneration Commission (SRC) and the Controller of Budget (CoB), whose unfavourable response stirred up sour relations.²⁷ Consequently, the High Court found that the impeachment of the Governor ‘was a deliberate scheme hatched to settle scores and was actuated with malice, bad faith, ill spite, witch-hunting and revenge.’²⁸ Impeachment motions have therefore been used by the MCAs as bargaining tools to blackmail Governors and other CEC members mostly handling the finance dockets.²⁹

Senators, on the other hand, have even threatened to disobey temporary court orders halting impeachment and oversight processes.³⁰ In fact, in Wambora I, both the CA and the Senate had proceeded with impeachment processes against the Embu Governor despite a court order temporarily barring the process. It is actually the disobedience of the court orders that led to Burrows O ‘LSK warns lawyer Senators over disobeying courts’ Capital News 16 October 2014, available at <https://www.capitalfm.co.ke/news/2014/10/lsk-warns-senators-over-disobeying-court-orders/> (accessed on 12 th August, 2018). the nullification of the process by the High Court as it firmly stated that, ‘anything done in disobedience of court orders is null and void ab initio and is a nullity in law.’³¹ The Senate’s eagerness to discharge the two roles seemingly ‘at all costs’ again pointed towards power play than the genuine exercise of a constitutional mandate. The latest shocker being the allegation that some of the Members of Parliament (MPs) of the National Assembly (NA) took a then thousand Kenyan shillings bribe, despite their huge salaries, to pass a motion on the illegal sugar importation just shows how cunning the legislature can be while performing its oversight role.³²

These arising issues in removing of County Governors from office need to be addressed in order to ensure that devolution is not killed. It is only five years now since the first county governments came into office but there have been close to hundreds of cases on impeachment of county officials with Embu County producing close to ten cases alone on the impeachment of the Governor, Martin Wambora. In Makueni County, it was alleged that the county was facing suspension because of impeachment motions filed against the county Governor and his deputy.³³

It is from the lessons learnt and observations made on how impeachment proceedings have been conducted since the first county governments came into office in 2013 that this research paper is centered on criticizing the legislative process of gubernatorial impeachments. This is important because impeachment of Governors touches on the objects of devolution which include inter alia the promotion of democratic and accountable exercise of power³⁴ ; the giving of powers of self-governance to the people and enhancing the participation of the people in the exercise of the powers of the State and in making decisions affecting them³⁵ ; and the enhancing of checks and balances and the separation of powers³⁶. The Kenyan courts have had a great opportunity to pronounce themselves on plenty of matters touching on devolution and particularly on impeachment of county Governors and other county officials. As a result, the jurisprudence emerging from the courts will be of great importance throughout this research paper. Furthermore, constitutional jurisprudence from the Federal Republic of Nigeria, which embraced devolution long before Kenya, will be of great use for the comparative purposes throughout this research study.

1.2 Statement of the problem

The 2010 Constitution has provided for the powers and functions of legislative and executive structures at both levels of government, the Judiciary and independent commissions. Among them is the oversight role of impeachment given to the legislature over the executive. The CAs and Senate have used this role to fight supremacy battles between themselves and other county officials including the Governors, CEC officers and even the county speakers to show most county Governors that they are the real ‘bosses’ at the county level.³⁷

Sincerely speaking, a devolved system of governance is usually complex in nature.³⁸ This leads to the problem of fully understanding the powers and functions of each arm of government at either level of government and how they are to relate with each other for the realisation of the objects of devolution. Although the 2010 Constitution has provided for the powers and functions of each arm of government at either level of government, there is less understanding by such representatives on how and when to carry out certain roles such as that of impeachment. This is because the devolved system of government in Kenya is still a baby and it ought to be treated as one. The Constitution provides that a county Governor can only be impeached on certain grounds.³⁹ Nevertheless, several county assemblies including that of Kericho, Nyeri, Embu, Machakos, Murang’a, Bungoma and Makueni commenced impeachment proceedings against their county Governors with almost all other CAs tabling motions to impeach other members of county executive or the county speaker. In the case of Makueni, it was so bad that the county was almost dissolved.⁴⁰ From the above scenarios, it is evident that the devolved system of governance in Kenya has faced numerous legal and political challenges and its implementation is one of the main causes of impeachment proceedings. Impeachment cases revolve around the exercise of powers and the performance of functions conferred by the Constitution and legislation. This is very sensitive particularly because the realisation of the objects of devolution depends on the exercise of powers and the performance of each arm of government at both levels of government. As a result, there is need to ensure that the CAs and Senate do not misuse the noble oversight role of impeachment.

Lack of trust and cooperation, information sharing, inadequate legal framework and political expediency between CAs and county executives are among the challenges facing the implementation of devolution in Kenya.⁴¹ Impeachment proceedings have adverse effects on service delivery and development to the people since they bring about a stalemate of activities at the county government.⁴²

But the problem is that Kenya does not have any history of constitutional jurisprudences and scholarly literature on devolution and particularly on the gubernatorial impeachment cases.

1.3 Research Questions

The research study seeks to answer the following questions:

(i) Has the legal and institutional framework for the impeachment of county Governors in the Kenyan devolved system of governance failed in ensuring that the principles of devolved government and the objects of devolution are adhered to?
(ii) Have the Senate and CAs misused and abused the constitutional and legislative process of removal of county Governors from office since the first county governments came into power?
(iii) Should the constitutional and legislative process of removal of county Governors from office be amended for the realisation of the objects of devolution in the Kenyan devolved system of governance?

1.4 Research Hypothesis

This research paper seeks to proceed on the following presumptions.

(i) That there is a need to amend the constitutional and legal framework for the removal of county Governors from office for the realisation of the objects of devolution in the Kenyan devolved system of governance.
(ii) That although there is sufficient legal and institutional framework for the legislative process of removal from office of Governors in the Kenyan devolved system, provided for in the CoK, 2010 and the CGA of 201243, both the CAs and Senate have abused the said legal process for their own selfish interests.
(iii) That the legal and institutional framework for the impeachment of county Governors in the Kenyan devolved system of governance has failed to ensure that the principles of devolved government and the objects of devolution are adhered to.⁴³

1.5 Research Objectives

The objectives of this research study are:

(i) To propose amendments to the constitutional and legal process of removal of county Governors from office for the realisation of the objects of devolution in the Kenyan devolved system of governance.
(ii) To demonstrate that the Senate and CAs have misused and abused the constitutional and legislative process of removal of county Governors since the first county governments came into power.
(iii) To show the need to amend the constitutional and legal framework for the removal of county Governors from office for the realisation of the objects of devolution in the Kenyan devolved system of governance.

1.6 Theoretical Framework

This legal research paper is founded and premised on the Kelsenian basic norm theory of law. Hans Kelsen is the author of the ‘Pure theory of law’ and ‘basic norm theory.’ Hans Kelsen’s contribution to jurisprudence especially the legal positivism theory is very important in constitutional law theory and practise. According to Hans Kelsen, law is derived from a system of norms and that laws are derived from normative statements. To differentiate between mere norms and norms that constitute law, then any norm claiming to be law must be part of the system of norms and the validity of any such norm derives from a higher set of norms. These higher set of norms derive their validity from even a higher set of norms which eventually lead to the ultimate norm known as the ‘ grund norm’ which is the ultimate basis of validity. This theory of law applies to the Kenyan legal system because it can safely be argued that the ‘grund norm’ is the Constitution of Kenya, 2010.⁴⁴ As a result, the 2010 Constitution is the supreme law and all other laws must derive their validity from it for them to be applicable as law.

The 2010 Constitution expressly provides for the components of constitutional supremacy.⁴⁵ The Constitution is recognised as ‘the supreme law of the Republic and binds all persons and all State organs at both levels of government.’⁴⁶ The second component provides that State authority can only be exercised as authorised by the Constitution.⁴⁷ This means that no person can have a legal foundation of exercise of State authority other than the Constitution. Article 2(3) provides that the validity or legality of the Constitution is not subject to challenge by or before any court or other State authority. Article 2(4) provides that:

Any law, including customary law, which is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

This is the foundation upon which other laws which do not conform to the Constitution are declared invalid by the courts of law which have the powers to declare certain laws to be unconstitutional.⁴⁸ The concept of constitutional supremacy derives its force from the concept of the sovereignty of the people. The concept of the sovereignty of the people is comprised of three elements: the power to constitute a frame of government, the power to choose those to run the government and the powers involved in governing.⁴⁹ Article 1 of the 2010 Constitution expressly provides that: ‘all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.’

1.7 Justification of the Study

This research is justified because although numerous impeachment motions of county Governors have been launched at the CAs and Senate, none has been successful to warrant the removal of sitting county Governor. This shows that county resources have been wasted by being spent for sittings to discuss impeachment motions against county Governors by members of the legislature and for the provision of legal services when these matters are taken to court for litigation. Again, stalemates in county projects and running of businesses in various county organs has also been witnessed due to such impeachment cases. It is therefore upon these facts that this research paper is justified.

1.8 Scope of the Study

This research paper examines the legislative process of impeachment of county Governors under the Constitution of Kenya, 2010 and the relevant legislations since the year 2013. It appreciates the procedures put in place to carry the process of impeachment.

The CA and the Senate are discussed as the key players in commencing and carrying out the whole process of impeachment of Governors. The courts are not left behind and are thus explained as the watchdogs of ensuring that the process of removing a Governor(s) from office is procedurally fair. Constitutional jurisprudence from the Republic of Nigeria is used for comparative purposes.

1.9 Research Methodology

This research paper intends to achieve the above statement of objectives by critically examining and reviewing data obtained from various sources. These sources include, but are not limited to, the Constitution of Kenya, 2010, statutes, case law, books, articles, newspaper articles and reports. Qualitative form of research will form the basis of this research by relying on library research and internet searches which are all desk based. For comparative legal study, statutory law together with case law from the Republic of Nigeria will be used in this research.

1.10 Limitations of the Study

The primary focus of this research work is to critique the legislative process of gubernatorial impeachments in Kenya. Additionally, this research work is aimed at proposing recommendations towards how better the process of gubernatorial impeachments can be conducted for the realisation of objects of devolution. To fulfil these objectives, this research work will depend highly on secondary research. Again, this research study will be limited to gubernatorial impeachments in Kenya and for the purposes of comparative study, gubernatorial impeachment cases from the Republic of Nigeria.

1.11 Literature Review

Generally speaking, there are several works of scholars on the Kenyan constitutional law theory and practise. However, when it comes to devolution law of Kenya, and specifically on impeachment of Governors, a few scholars have written on the area due to its novel nature.

Elisha Z. Ongonya’s chapter⁵⁰ addresses separation of powers under the CoK, 2010. He stipulates of an overlap between the executive and legislative powers and states that duties of the executive are subject to oversight by the legislature. However, in addressing these overlaps between the executive and the legislature, he fails to provide for the process of impeachment, particularly gubernatorial impeachment, which is a legislative role exercised on the county executive by the CA and the Senate. This research work will be seeking to address the process of removal of county Governors from office by CAs and Senate since 2013 and propose reforms on how the people can be more involved in such impeachment motions. Notably, the chapter discusses the sovereign power of the people which may be exercised directly or through delegation to State Organs. This research work will be in agreement with this argument and propose on how the delegated powers of impeachment of Governors may also be given back to the people since the CAs and Senate have numerously carried out this impeachment role for selfish interests rather than for good governance and political good-will of the electorates, an area not covered in the said chapter. The role of the courts in gubernatorial impeachment claims is also not discussed in this chapter. This research work seeks to address all these areas that have not been addressed.

Steve O. Odero looks into the devolved system of governance.⁵¹ In this chapter, he discusses that good governance mechanisms and rules aim at promoting development and accommodating all the stakeholders including the people in decision-making processes that affect their lives. He therefore argues that good governance is required in the devolved system of government in order for all to enjoy the objects of devolution. In seeking to concur with him that in deed people need to be involved in decision-making processes that affect their lives, this research study will propose that the people be more involved in the impeachment processes of their Governors. This is because such decisions affect them as electorates of their respective county(s). His work fails in providing the procedure of gubernatorial impeachment and role of key players such as the courts, Senate and CAs which this research seeks to cover. He also fails to provide on how better the noble role of impeachment, particularly gubernatorial impeachment, can be conducted for the realisation of objects and principles of devolution, areas that this research study will be addressing.

Petronella Mukaindo’s doctoral thesis on the emerging issues in the relationship between Senate and county governments in Kenya’s devolution implementation provides a detailed analysis of how gubernatorial impeachments have been conducted since 2013.⁵² It concentrates on the legislative bodies; Senate and CAs and how they have been able to conduct the process of removal of Governors and other CEC members from office and goes on to demonstrate that the process has been abused leading to standoffs and could therefore kill devolution. Much will be drawn from her insights into the impeachment of Governors since the first county governments were elected into office since it is in relation to the research study that is proposed. The arguments presented in her thesis that the law governing the impeachment process should be amended and other bodies such as the courts be involved in the process will be of use in this research study since one of the arguments that this research paper will be presenting is that the CAs and Senate have abused and misused the impeachment process and therefore this role should be granted to other persons such as the electorate. She fails to discuss the role of the courts in such cases and stipulate the procedure that the legislature should follow in performing this role of impeachment which this research study seeks to outline.

M. K. Mbondenyi and J. O. Ambani in their book⁵³ briefly discuss devolution and gubernatorial impeachment. They only appreciate the grounds under which a county Governor may be removed from office through impeachment. They go further to state what the 2010 Constitution envisages should happen in the event that the office of the governor becomes vacant. However, Mbondenyi and Ambani’s book fails to discuss the gubernatorial impeachment process fully and how better it should be carried out for the realisation of the objects and principles of devolution in Kenya’s devolved system of governance. This research paper is committed to explain in detail the gubernatorial impeachment process in Kenya’s devolved system and propose reforms to the said process for the realisation of the objects of devolution, by looking at how the Federal Republic of Nigeria has dealt with such cases.

Dr. J. Mutakha Kangu in his book⁵⁴ adopts a purposive interpretation of the constitutional provisions dealing with devolution. He outlines the role of the CA and the Senate in the impeachment of Governors. At the same time, he appreciates the grounds of impeachment laid out in the Constitution and shows the role of the courts in an impeachment process. Mutakha Kangu’s work does not clearly provide for the procedure of impeaching the Governors which this research study is determined to provide. His detailed explanations on purposive interpretation of the devolution provisions of the 2010 Constitution will be of use in this research paper. His work, however, fails to discuss the process of gubernatorial impeachment in Kenya and how the Kenyan courts, CAs and Senate have dealt with these cases. He also fails to provide recommendations on how the process of removal of county Governors can be amended for the realisation of not only objects but also principles of devolution. His work does not demonstrate how the people can be more involved in impeachment motions against their county Governors. All these gaps are proposed to be discussed in this research study.

Mweresa Eboso’s doctoral thesis is based on how some processes although political in nature, have been judicialised under the CoK 2010.⁵⁵ According to his thesis, one of these processes is impeachment. He provides that when election petitions or impeachment proceedings are presented in a court of law, the court of law determines the representative of the people while ideally, that representative should be elected or rather such choice should be given to the people to decide and thus amounts to judicialization of politics. This is important in relation to the research study because this paper also seeks to show how the courts have handled gubernatorial impeachment cases and use the jurisprudence emerging from the courts in presenting its arguments. The thesis does not, however, discuss the whole process of gubernatorial impeachment in Kenya and how the Kenyan courts, CAs and Senate have dealt with these cases. He also fails to provide recommendations on how the process of removal of county Governors can be amended for the realisation of not only objects but also principles of devolution. His work does not demonstrate how the people can be more involved in impeachment motions against their county Governors. These gaps are proposed to be discussed in this research study.

Charles Mwaura Kamau’s introduction to the Constitutional Law of Kenya remains at this introductory level.⁵⁶ It briefly touches on the devolution provisions but does not move to the level of discussing gubernatorial impeachments in Kenya since 2013 when the first county governments got elected into office. His work, however, fails to discuss the whole process of gubernatorial impeachment in Kenya and how the Kenyan courts, CAs and Senate have dealt with these cases. He also fails to provide recommendations on how the process of removal of county Governors can be amended for the realisation of not only objects but also principles of devolution. His work does not demonstrate how the people can be more involved in impeachment motions against their county Governors. This research study proposes to cover all these uncovered areas.

The World Bank’s ‘devolution without disruption,’⁵⁷ although providing a detailed analysis on the practical aspects and challenges of implementation of devolution, does not focus on impeachment proceedings as one of the challenges that may kill devolution if not addressed in time. This research paper is determined to outline not only the procedures put in place for removing of county Governors from office and how courts have dealt with such issues, but also the challenges brought about by impeachment proceedings that are likely to arise in the Kenyan devolved system of governance if the procedure is not keenly looked into and necessary changes made to the process. The role of the courts, CAs and Senate is also not delved into in this book, an area that this this research study seeks to lay much focus on.

Valerie Nangidi’s chapter⁵⁸ argues that impeachment proceedings are a form of oversight role by the legislature in ensuring accountable leadership which is critical to the effectiveness of counties. Her chapter agrees that such oversight role has led to conflict and disputes among the CAs, Governors and CEC members since it is not being carried out in decorum and integrity. As this research paper seeks to critique the legislative process of gubernatorial impeachment which Valerie Nangidi says has turned out to ‘legislative dictatorship,’ it will appreciate her work in general and her recommendation that tools such as impeachment should be preserved for extreme cases of gross violation of the constitution. However, this research work is also committed to explain in detail procedures put in place for removing county Governors from office, an area not covered in her chapter. The role of the courts, CAs and Senate is also not delved into in this chapter, an area that this this research study seeks to lay much focus on and provide recommendations at the same time.

Jill Cottrell Ghai’s chapter⁵⁹ looks into the application of the right of fair administrative action in the process of removing a county Governor(s) from office through impeachment. He agrees that removal cases are often problematic but does not go deeper into the whole legislative process of impeachment neither does his chapter propose reforms on how better the process of gubernatorial impeachment can be conducted, an area that this research paper M. Conrad & Wanjiru Gikonyo (eds.), Animating Devolution in Kenya: The Role of the Judiciary (Commentary and Analysis on Kenya’s Emerging Devolution Jurisprudence under the new Constitution) (2015) IDLO, Judiciary Training Institute and Katiba Institute.

(Commentary and Analysis on Kenya’s Emerging Devolution Jurisprudence under the new Constitution) (2015) IDLO, Judiciary Training Institute and Katiba Institute. seeks to lay much focus on. This research paper also seeks to recommend on how the people can be more involved in impeachment motions against their county Governors for the realisation of the objects and principles of devolution. An area not covered in Jill’s chapter. The role of the courts, CAs and Senate in this process of gubernatorial impeachment is also not discussed in the chapter. This research study is determined to discuss these undiscussed areas on gubernatorial impeachment.

It is thus clear that there is a dearth of literature on the issue of gubernatorial impeachments in Kenya’s devolved system of governance which this study seeks to provide. Drawing from comparative literature and jurisprudence from Nigeria, this research seeks to provide recommendations on how better the process of removal of county Governors from office can be conducted.

1.12 Chapter Breakdown

This research paper entails a total of four chapters.

Chapter one deals with the introductory part of the study. It provides a context of the study setting out the background, the problem, the justification of the study, the research hypothesis, the research questions, the research objectives, the theoretical framework, the defining concepts, the research methodology, the literature review, the scope of the study and the chapter outline.

Chapter two examines the constitutional, legal and institutional framework for the legislative process of gubernatorial impeachment in the Kenyan devolved system. Institutions established by the Constitution and legislations as the key players in the gubernatorial impeachment process such as the CAs and the Senate are discussed in detail.

Chapter three identifies the issues which have arisen in the gubernatorial impeachment cases in Kenya since 2013 by looking at how the process of impeachment of Governors has been carried out. The role of the courts in the impeachment process is also discussed in detail while giving a comparative study of how other countries with a devolved system similar to that of Kenya have dealt with cases of gubernatorial impeachment. Solutions are given by looking at the Nigerian and South African constitutional jurisprudences on similar issues.

The last chapter, chapter four, covers the conclusion and recommendations. This chapter presents a general conclusion on the constitutional and legislative framework for the impeachment of Governors in the Kenyan devolved system since 2013. This presentation is given by outlining the major argument presented in this research paper and the lessons which Kenya can learn from Nigeria. Recommendations for reform on the laws governing the legislative process of gubernatorial impeachment are also proposed for the realisation of the objects of devolution in Kenya.

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¹ Constitution of Kenya, 2010 Article 4(1) provides that, ‘Kenya is a sovereign Republic’; M.K Mbondenyi &

² Kark E. Klare, ‘ Legal Culture and Transformative Constitutionalism,’ South African Journal on Human

³ J.M Kangu, Constitutional Law of Kenya on Devolution (2015) Strathmore University Press at 2.

⁴ The CoK, 2010 Article 1(4) provides that, ‘The sovereign power of the people is exercised at- (a) the national level; and (b) county level.’

⁵ (n 4) Article 6(2).

⁶ (n 4) Articles 93(1) and 94(1).

⁷ (n 4) Article 176 (1) provides that ‘There shall be a county government for each county, consisting of a county assembly and a county executive.’

⁸ Constitution of Kenya Review Commission (CKRC),‘The Final Report of the Constitution of Kenya Review Commission’ (2005).

⁹ CoK, Article 10.

¹⁰ Bryan A Garner, Black’s Law Dictionary (8th ed. 2004) at 2197, available at <http://www.republicsg.info/Dictionaries/2004_Black%27s-Law-Dictionary-Edition-8.pdf> (accessed on 11th August, 2018).

¹¹ (n 9) Article 181 (1).

¹² CGA, Section 33 (1).

¹³ (n 12) (2).

¹⁴ (n 12) (3).

¹⁵ (n 12) (5).

¹⁶ No. 17 of 2012, Laws of Kenya.

¹⁷ Kenya Law Resource, available at <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2018/ImpeachmentProcedureBill_2018.pdf> (accessed on 11th August, 2018).

¹⁸ Wambora para 205.

¹⁹ (n 18) para 207.

²⁰ CoK, Article 47 and Section 4, Fair Administrative Action Act No. 4 of 2015.

²¹ (n 20) Article 50.

²² Impeachments are often driven by self-interest, available at <https://www.standardmedia.co.ke/article/2000216374/impeachments-are-often-driven-by-self-interest> (accessed on 11th August, 2018).

²³ Amar, Akhil Reed, ‘On Impeaching Presidents’ (1999). Faculty Scholarship Series. Paper 845 at 5.

²⁴ (n 22).

²⁵ (n 22).

²⁶ Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 others 2014 e KLR.

²⁷ (n 26) paras 34, 35.

²⁸ (n 26) para 36.

²⁹ For instance ‘Report of the Special Committee on the proposed removal from office of Prof Paul Kiprono Chepkwony, the Governor of Kericho County’ dated 3 June 2014 (‘Kericho Governor Senate Select Committee report’) para 41. The Governor alleged that an MCA had approached him to solicit bribes on behalf of the other MCAs in order to ‘save the Governor’ from the impeding impeachment proceedings.

³⁰ Kenya Senate to discuss Kibwana impeachment despite court order Standard Digital 13 October 2014. Also

³¹ (n 26) paras 282, 296 and 314.

³² How your MP was bought for a song on a day of high drama, available at <https://www.standardmedia.co.ke/article/2001291460/how-your-mp-was-bought-for-a-song-on-a-day-of-high-drama> (accesed on 12th August, 2018).

³³ Micahel Manthi Kisoi v Commission of Inquiry into the Petition to Suspend Makueni County Government & 8 Others 2015 eKLR, Nairobi High Court Constitutional Petition No. 158 of 2015, para 10.

³⁴ CoK, Aricle 174 (b).

³⁵ (n 34) (c).

³⁶ (n 34) (i).

³⁷ War of MCAs, Governors hurts counties, available at <https://www.nation.co.ke/news/politics/War-of-MCAs-governors-hurts-counties/1064-2624964-w66ljez/index.html> (accessed on 9th August, 2018).

³⁸ World Bank, Devolution Without Disruption: Pathways to a Successful New Kenya (2012) 12 [World Bank (2012)] stated that ‘The scale, scope and complexity of Kenya’s devolution entails major challenges and risks inherent in the transformation process, but creates new opportunities for improving service delivery at local levels, and strengthening overall accountability to communities.’

³⁹ CoK, Article 181 (1).

⁴⁰ Makueni success story tops devolution conference talk, available at <https://www.the-star- .co.ke/news/2018/04/26/makueni-success-story-tops-devolution-conference-talk_c1749685> (accessed on 12th August, 2018).

⁴¹ Law is clear on county governments, lawyers say, available at <http://www.standardmedia.co.ke/m/article/2000091246/law-is-clear-on-county-governments-lawyers-say/pageNo=2> (accessed on 16th August, 2018).

⁴² Secretary Isiolo County Assembly & 2 Others v Speaker (Mohammed Tubi) Isiolo County Assembly 2014 eKLR, para 40.

⁴³ CAP 17 of 2012, Laws of Kenya.

⁴⁴ Mbondenyi & Ambani (2013) at 47.

⁴⁵ CoK, 2010, Article 2.

⁴⁶ (n 45) (1).

⁴⁷ (n 45) (2).

⁴⁸ (n 45) Article 165 (3) (d) (i) and (ii).

⁴⁹ Mbondenyi & Ambani (2013) at 39.

⁵⁰ Elisha Z. Ongonya, ‘Separation of Powers,’ in P.L.O Lumumba, M.K Mbondenyi and Steve O. Odero, The Constitution of Kenya: Contemporaray Readings (2013) Law Africa.

⁵¹ (n 50) Steve O. Odero, ‘Devolved Government.’

⁵² Petronella K Mukaindo, ‘Kenya’s Devolution Implementation: Emerging Issues in the Relationship between Senate and County Governments’ (LLM thesis, University of the Western Cape 2014).

⁵³ M.K Mbondenyi and J.O Ambani, Supra.

⁵⁴ J.M Kangu, Supra.

⁵⁵ Mweresa Benard Eboso, ‘Judicialization of Politics under the Constitution of Kenya 2010’ (LLM thesis, University of Nairobi 2014).

⁵⁶ Charles Mwaura Kamau, Principles of Constitutional Law (2014) Law Africa.

⁵⁷ World Bank, Devolution without Disruption: Pathways to a Successful New Kenya (2012).

⁵⁸ Valerie Nangidi, ‘County Governance: Political and Institutional Structures and their Effectiveness,’ in Bosire

⁵⁹ Jill Cottrell Ghai, ‘The Bill of Rights and County Governments: Emerging Jurisprudence from the Courts,’ in Bosire M. Conrad & Wanjiru Gikonyo (eds.), Animating Devolution in Kenya: The Role of the Judiciary