Do not politicise impeachment

The 2010 Constitution introduced devolution with impeachment as an oversight tool with far-reaching ramifications for any leader subjected to it.

But the crucial tool must be safeguarded and reserved as a last resort, only in case of gross misconduct and violation 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 governor.

The threshold for impeachment should not be lowered for political expediency. The Court of Appeal, in 2014 (Wambora case), was emphatic that not every violation amounts to gross misconduct. Such must be so gross that it renders other organs under the Constitution unworkable.

Ms Mwangaza was elected the Governor of Meru on an independent ticket, as a woman in the strongly patriarchal society. Her election and short-lived impeachment awakened the memories of the woes of Anarita Karimi, the first woman MP in the region, who was unceremoniously hounded out of office. Before the governor could settle in, an impeachment motion came calling. It was approved by almost all the MCAs, having been reinforced by a strong party mobilisation.

The MCAs sang and danced to send the darling of the people home. Anyone who sang a different song or played the guitar tunes of the First Gentleman faced the music. The MCAs may have danced themselves lame at the Meru County Assembly before the real dance. The Senate was not amused and put the first and last nail in the coffin, finding that none of their allegations was substantiated.

But although the impeachment bid did not see the light of day, it has triggered several pertinent policy and legal issues of concern for a strong devolution. First, there is no clarity on what constitutes gross misconduct or gross violation of the law.

Since the Wambora case, there has been no attempt at defining and circumscribing, through legislation, what qualifies as gross enough to warrant impeachment. This has left governors exposed to MCAs seizing the opportunity to elevate every act or omission to a gross violation.

Secondly, first gentlemen are increasingly visible but the roles and scope of their mandate are undefined in the law. Our politics has made it okay for spouses to campaign together but it becomes ominous for the first gentleman to be seen in public functions with the governor once in office. The law should guide governors on how to benefit from their spouses’ support without offending the law. 

Keep off their spouses

It should not be lost on policymakers and legislators that elected governors cannot keep off their spouses from the public at ease, especially when, as a couple, they have led a public life all along. It is more helpful for the influence of first spouses to be defined rather than assumed and left to culture or discretion.

Some first gentlemen, owing to their masculinity, may be strong-willed, staunch and visible and can, hence, easily be accused of acting like co-governors. This may explain why the role of the first gentlemen for close couples may be more pronounced than that of their female counterparts. But that does not make first gentlemen any different from first ladies and harsh judgement based on perceptions or biased media reports may be unfair.

Thirdly, it is necessary to protect independently elected governors against a united majority and minority in the county assembly. The Constitution anticipated leadership of independent candidates working with an objective county assembly but politics was not anticipated.

The will of the electorate in choosing independent candidates should be protected in the law to promote sovereign power in the people. One such balancing tool would be a high and verifiable threshold in public participation. Else, independent governors may not finish their term or would be strangers in their own government in the process of balancing competing power interests to the disadvantage of the people.

Fourth, impeachment should not be used as a political weapon but rather be reinforced as an oversight tool of last resort and only activated sparingly since other mechanisms for redress exist in the law. There should be a legislated time before and after which no impeachment motion can be tabled against a governor.

This would not be a licence for impunity or illegality but insurance for good order. For instance, Section 27 of the County Governments Act protects MCAs against recall by the electorate before two years. This must have been intended to give elected leaders a chance to prove their leadership with time. Curiously, there’s none for governors.

The institution of the Governor is the epicentre of devolution. The Executive at the devolved level frames policies and implements projects in the interests of the county. That makes it imperative to protect this office from wasteful politics. Hopefully, the attempted impeachment of Governor Mwangaza will serve as a lesson that will strengthen devolution. The law never anticipates all scenarios. Therefore, such incidents should give a fresh breath to the law.

Mr Mutuma ([email protected]), Mr Mwangi ([email protected]) and Mr Mutembei ([email protected]) were legal counsel for Meru Governor Kawira Mwangaza during her impeachment proceedings at the Senate.