Former Kiambu governor Ferdinand Waititu has lost a bid to have the High Court reverse his impeachment, a move that could test the politician’s ambitions to run for Nairobi governor in August.
Justices George Dulu, Grace Nzioka and Wilfrida Okwany on Thursday unanimously ruled that the Kiambu County Assembly and the Senate followed due procedure in approving Mr Waititu’s impeachment.
Mr Waititu had claimed that after the Kiambu County Assembly proposed that he be removed from office, the Senate deliberated the motion outside the seven-day window stated in the Constitution.
He also accused the county assembly of failing to submit its impeachment decision within the two-day window stated in the Constitution.
The Kiambu County Assembly rendered its decision on December 19, 2019 and passed it on to the Senate on December 23, 2019.
Under Kenyan law, the Senate had seven days to reach a final determination after hearing from all parties.
Mr Waititu’s impeachment was deliberated on between January 28 and 29, 2020, which was nearly a month after the Kiambu County Assembly’s decision.
Justices Dulu, Nzioka and Okwany have now ruled that computation of the timelines was not set in black and white as weekends and times that the legislating houses were on recess should have been exempted from the count.
The judges ruled that December 19, 2019, when the impeachment was proposed by the county assembly, is exempted from the two-day count as it was a Friday, and the next two days were also out of the count.
This means that the County Assembly had until December 23, 2019 to forward its impeachment proposal to the Senate.
The Senate on its part was allowed to skip its recess period in the seven-day deadline.
As the Senate was on recess starting December 6, 2019 to February 10, 2020, Mr Waititu’s impeachment proposal was deliberated on during special sittings.
“In our view, the period of the recess is exempt from computation of time. We therefore find that from the uncontested chronology of events before the Senate from December 23, 2019 when it received the Kiambu County Assembly’s resolution on impeachment to January 29, 2020 when it voted to impeach Mr Waititu, the time taken to deal with the matter was necessary and reasonable in the circumstances and within the set timelines,” the judges ruled.
Mr Waititu filed the High Court petition alongside Kiambu Township MCA Antony Ikonya Mwaniki.
No public participation
The former governor argued that aside from the alleged timeline hitch, he was denied a chance to be heard before the county assembly, and that there was no public participation on his removal from office.
He added that there was no quorum in the county assembly. Under the Constitution, the first step for removal of a governor from office is a two-third vote in the county assembly.
Mr Waititu claimed that only 57 MCAs consented to his removal, yet a two-thirds vote would require 62 legislators.
But the county assembly insisted that 64 MCAs voted for Mr Waititu’s removal.
Justices Dulu, Nzioka and Okwany held that Mr Waititu did not prove the allegation that there was no quorum.
“We have considered the arguments on the issue of quorum and find that there is no dispute that the requisite quorum to pass a valid resolution on a special motion by the assembly is two-thirds of its membership. The bone of contention is whether the 62 number threshold was met. We find that the burden of proving that the number threshold was not met rested on the petitioners going by the adage “he who alleges must prove”, the judges said.
Following Mr Waititu’s removal, his deputy James Nyoro was sworn into office.
The High Court decision could dent Mr Waititu’s plans to run for the Nairobi gubernatorial seat in the August General Election.
Legal and governance experts have warned that Mr Waititu’s impeachment run him afoul of Chapter Six of the Constitution, which requires public officers to be of high integrity, but the politician has insisted that he will be on the ballot.
Despite being declared unfit to hold public office by the High Court in 2014, Mr Waititu successfully contested for a vacancy in the National Assembly following the death of former Kabete MP George Muchai.
He served as Kiambu governor between August 2017 and January 2020.