The Cambridge dictionary defines impeachment as the act of making a formal statement that a public official might be guilty of a serious offence in connection with his or her job, especially in the US.
This word found its way in the 2010 Constitution in connection with the president and deputy president.
The process
Article 145(1) says: “A member of the National Assembly, supported by at least a third of all the members, may move a motion for the impeachment of the President — (a) on the ground of a gross violation of a provision of this Constitution or of any other law; (b) where there are serious reasons for believing that the President has committed a crime under national or international law; or (c) for gross misconduct.”
If the motion is supported by at least two-thirds of all MPs, Article 145 (2) requires the National Assembly speaker to inform his or her Senate counterpart in two days.
After receiving this communication, the Senate speaker should in seven days convene a meeting of the House to hear charges against the President. The Senate may form a committee of 11 members to investigate the president.
All through this period, the president is still in office and has the right to appear and be represented before the special committee during its investigations.
If the committee finds that the particulars of the allegations are substantiated, the Senate shall offer the president the right to be heard and then vote on the charges.
Consequently, if at least two-thirds of all senators vote to uphold any charge, the president ceases to hold office.
Under Article 150, the same applies to the removal of the deputy president.
The County Governments Act 2012 extends the procedure for removing a president to governors.
Expert opinion
Jill Ghai, a former law lecturer and a director at Katiba Institute, notes that the curious difference is that to remove a governor, only a majority of all the senators is required.
“Both Houses of Parliament include the procedure for impeachment in their Standing Orders. Comparing these with what happens in the US suggests that a ridiculously short time is allowed for this in Kenya," Ghai writes.
"For example, the Senate committee must decide within 10 days whether the charges against a President are justified. When Bill Clinton was impeached, the Senate hearing took 36 days. Surely, there can be no quick fix for such an important matter?”
Unsuccessful bids to impeach governors
Kiambu Governor Ferdinand Waititu has been impeached by the county assembly and the matter is now before the Senate. He is, however, not the first, or last, governor to face impeachment.
The most popular case hitherto involved Embu Governor Martin Wambora, who twice survived impeachment, despite the Senate convicting, him after going to court in 2013 and 2014.
In the first case, the High Court decided — and the Court of Appeal agreed — that the Embu county assembly and the Senate acted unconstitutionally and consequently nullified the impeachment.
The Senate impeached him again in May 2014, with 35 senators out of 47 elected legislators voting in favour of his removal.
Wambora was facing three charges — gross violation of the Public Procurement and Disposal Act, gross violation of the Public Finance Management Act and violation of the Constitution.
Court of Appeal judges John Mwera, Hannah Okwengu and GBM Kariuki nullified the Senate's decision for the second time, ruling that there was no clear evidence the governor acted in gross violation of the Constitution.
Kericho Governor Paul Chepkwony was impeached by the county assembly on May 14, 2014, when 32 ward reps voted to remove him from office. They accused him of abuse of office, flouting procurement rules, and unlawful procurement of goods and services. The Senate committee investigating him cleared him of all three charges.
Murang’a Governor Mwangi wa Iria was impeached in October 2015 on accusations of misusing county cash, failing to manage its debt, gross misconduct and abuse of office.
Senators on November 11, 2015, however, ruled that the charges did not meet the constitutional threshold for impeachment. Others whose attempts did not go past the Senate include that of former Nyeri Governor Nderitu Ghagua (September 2016), now deceased, and Taita Taveta’s Granton Samboja in October last year.
Why has it been hard to impeach governors?
The impeachment of a governor can be equated to a trial process, with specifications under Article 181 of the Constitution and Section 33 of the County Governments Act 2012, advocate Areba Omwoyo says.
"The reason we have not so far had a successful impeachment(s) is because of factors such as flouting of the process at the county assembly level," he says.
Omwoyo says because the governor under impeachment is being tried, principles of natural justice apply. "When these rules do not apply then courts have overturned this," he says.
At the Senate level, the advocate says, party interests and external influence have come into play, thus saving the governors.
"It should not be lost that some unruly MCAs are using impeachment motions as a get back mechanism when their demands are not met. So many county chiefs have been forced to always appease these MCAs to have continuous peace of mind," Omwoyo says.
Ghai says the four governors have been impeached by their assemblies, but not convicted by the Senate because the assemblies failed to prove sufficiently serious misconduct.
