Impeachment process must follow the law

First it was Nairobi, then the events moved to Homa Bay, Nyandarua, Kakamega and now to Kisumu. The wind of impeachment of speakers is blowing across Kenya and nobody is sure where it will stop. Unless it does so. we are setting a dangerous precedent.

The actions of the Members of County Assemblies must be seen within the context of the implementation of devolution. County governments are a government established by the Constitution. They are expected to operate within the dictates of democracy, including separation of powers and accountability. In addition, the introduction of devolution was meant to, amongst other things, take governance closer to the people. In doing so, the standards expected of the leadership at that level was expected to improve.

This is the context within which performance of county assemblies must be assessed. These are constitutional bodies with all the powers that a legislature has. They make laws, the undertake oversight, their members also carry out representation functions. In addition, they approve budgets for spending and revenue raising at the county level.

The debate cannot be whether county assemblies can impeach their speakers. This is an incidental aspect of their powers as a legislature. In addition, it is provided for and contemplated by the Constitution. In undertaking the task, Assembly members are performing a constitutional task. Since this is a power they have from the Constitution, one cannot take it away from them or argue that they cannot impeach speakers. In any case they are the same ones who elect the same speakers. They should, therefore, have the rights to get rid of them when they are dissatisfied with their performance.

The controversy arises from the debate as to what qualifies to be considered “dissatisfied with their performance.” The Constitution does not use these words. However, it provides that impeachment is to be undertaken in accordance with the law passed by Parliament. Further since it is encapsulated in the Constitution, such impeachment must meet constitutional requirements, including the principles of governance under Article 10 and the provision of the Bill of Rights. It should be undertaken in a manner that builds and not destroys devolution.

This means that in carrying out the task, members of county assemblies must be moving towards protecting devolution and preventing speakers from acting in a manner to make the county assembly and consequently the county operate unconstitutionally. On the other hand, the process must not be an opportunity of beating speakers into submission or flexing muscles. It is for this reason that the Constitution demands that there be law to guide the exercise of the power so as to avoid its being misapplied.

The County Government Act provides the procedure that county assemblies should follow when conducting impeachment proceedings. These are further supported by their standing orders. At the heart of these processes are the realization that we are a democracy guided by the rule of law. The rule of law requires that everybody operates within the law and that due process be the hallmark of decision-making. Both the Speakers subject to impeachment and the members have rights and responsibilities. None of the groups is above the law. It is consequently unacceptable for any of the groups to see themselves as being above the law.

From the recent events, one sees the political side of impeachment. There are contestations between Speakers and their members over who has more power.

Secondly, after the last election, where previous speakers vied for higher national level offices, so did members of county assemblies the temptation to start the process of campaigning for such positions this early is expected even though disruptive. In such instances impeachment process can very easily become a political tool.

While politics is acceptable, to use constitutional processes to settle political scores is dangerous and disruptive. It has the potential of preventing delivery of services to the people. It also brings the assemblies in question into public ridicule.

The Constitution requires that leadership be exercised with decorum. The procedures must be objectively applied and the basis for impeachment must be one that is recognized in law.