Kenyan Governor Impeachment Procedure: Legal Underpinnings and Case Studies

1. The Legal Basis for Impeachment

Section 32 of the Act specifies what must be included in a resolution aimed at ousting a county
executive committee member from office.
Partisan positioning of members and the manner in which County Assemblies are currently
constituted, and in that the principles of the Constitution and the rule of law, are disregarded.
Additionally, the wording of proposed legislation overrides the meaning and the intent of the
Constitution. Hence, in preparing front-line legislation, two levels of county government should
adhere to the principles of the Constitution in confirming to the principles of democracy,
equality, human rights and participation and good governance and good leadership. The function
of ensuring that democracy is maintained and the rule of law is upheld, that human rights are
respected and protected, and that the Constitution is respected and all public officers promote
and protect it rests upon every public officer, including members of the Executive, members of
the County Assembly and the various State agencies, including and in particular the Law Society
of Kenya, the Judiciary, Kenya Police and the Independent Police Oversight Authority. These
agencies are particularly vulnerable as to whether they are among public officers who must
always act in the public interest.
In accordance with Article 181 of the Constitution, a member of the county executive committee
can be removed from office by a resolution supported by a majority of the members of the
county assembly. The office of the county governor shall become vacant if the holder dies,
resigns or is removed. For a member to be removed from office through impeachment, Chapter 6
of the County Government Act provides for the procedure including the grounds for removal
from office, the role of the Senate and the conduct of hearings. Other than criminal activity,
grounds for impeachment include gross violation of the Constitution or any other law, abuse of
office, gross misconduct, where there are serious reasons for believing that the holder of the
office has committed a criminal offence under national or international law, and physical or
mental incapacity to perform the functions of office. If a member of the executive committee is
unable to perform the relevant functions for whatever reason, the governor should appoint
another member of the county executive committee to serve in an acting capacity for the required
period. Vacation of office by the governor or the county executive committee member may be a
result of illness or the need for compassionate leave.
1.1. Constitutional Provisions
Article 181(1) creates three grounds upon which a person acting in the capacity of governor may
be removed from office. The first ground is gross violation of the Constitution or any other law.
The second ground is where there are serious reasons for believing that the governor has
committed a serious crime under national or international law. The third ground is abuse of
office or gross misconduct.
(3) If a motion under clause (2) is supported by at least two-thirds of all the members of the
county assembly:
(a) The speaker of the county assembly shall inform the speaker of the senate of the passing of
the motion within two days.
(b) The county governor shall continue to perform the county governor's functions until the
Senate makes a decision under clause (6).
(2) A member of the county assembly, supported by at least a third of all the members of the
county assembly, may propose a motion for the removal of a county governor on any of the
grounds specified in clause (1).
(1) A county governor may be removed from office on any of the following grounds:
(a) Gross violation of this Constitution or any other law.
(b) Where there are serious reasons for believing that the county governor has committed a crime
under national or international law.
(c) Abuse of office or gross misconduct.
Article 181 of the Constitution of Kenya provides as follows:
1.2. Legislation and Rules of Procedure
The rules of procedure, as enshrined in the Constitution of Kenya, the County Governments Act,
and the Standing Orders of the Senate of Kenya, 2013, do not explicitly provide how the Senate
should sit to hear an impeachment proceeding. The conduct of impeachment proceedings has to
borrow from other jurisdictions, best practices, and legal procedures and administrative common
sense. Furthermore, the question that arises is the language of the Standing Orders on how the
house ought to conduct itself when it contemplates the "special sitting" mentioned in the
Constitution.
The constitution is silent on the process of impeachment of a governor. The speaker of the
County Assembly acted as an entity filling the void regarding the impeachment process. The
speaker would seek legal advice from the Kenyan Senate, the speaker of the National Assembly,
and the office of the Attorney General. Following a constitutionalist interpretation of natural
justice and the rule of law, he would require the process to be conducted in the house with
majority support, without flouting the rules of procedure of the house exercising neither
oversight as a court or tribunal, nor the express powers as contained in the schedule, in executing
the impeachment functions of the Senate.

2.1. Initiation of impeachment proceedings

Simultaneously, the Speaker advises the Senate of the resolution of the county assembly to
remove the governor, including the accusations that form the basis of impeachment. In a sense,
formal notification to the Senate entails nothing more than informing the Speaker of the Senate.
Once the Speaker of the Senate receives the resolution from the Speaker of the county assembly,
the Senate is required to give notice of the resolution to the concerned governor and to forward a
copy of the motion and its accompanying documentation to the governor, highlighting the
importance of the timing, allegations and speaker's role in respect of the impeachment process.
A member of the county assembly may introduce a motion to impeach a governor by giving the
Speaker a copy of the motion and a brief statement of the allegations that warrant the proposed
removal of the governor from office. Similar to the convention in respect of impeachment trials
in other jurisdictions, the said allegations are akin to accusations in a formal criminal charge,
such that a person of ordinary intelligence should know what conduct is prohibited.
Coincidentally, the accused governor escapes the rigors of cross-examination even though he or
she may choose to do so. Within two days of receipt of the motion, the Speaker is obliged by the
Standing Orders to convene a sitting of the county assembly that is not earlier than seven days
and not later than 14 days from the date on which the copy of the motion was delivered to him.
The Speaker forwards the motion and the accompanying documents to the Senate and to the
governor within two days of the resolution.
Once the motion has been approved by the requisite majority of the members of the county
assembly, CMA must, within two days, send a copy of the motion and the supporting grounds
for the removal to the Speaker of the Senate and to the governor. Failure to notify the Senate will
bring the appointment of CNS into grave question and will result in a constitutional stalemate
akin to that for vacancies arising in the office of Governor. The courts will essentially hold that
the appointment of CNS is not in substantial compliance with the constitutionality regarded as
legally defective, null and void.
The threshold for approval of the motion of impeachment is set at a simple majority, i.e., more
than 50%, of all the members of the county assembly. In the absence of evidence, then the
motion will fail, and this will imply that the governor will heave a sigh of relief and continue
holding office. It is to be noted that the evidence for the purposes of the motion before the
impeachment process is not the evidence to be used for trial purposes in the Senate. What will be
required at the Committee of the Senate is to ensure fairness and justice to the aggrieved parties
and aggrieved parties during the process, without necessarily applying formal rules used in the
judicial process so that the Assembly can form well and judiciously informed decisions.

Investigation

The failure of the Constitution to provide a procedure for the investigation of complaints against
a governor leads to administrative and procedural challenges. This administrative and procedural
gap occasioned by the failure of the Constitution to provide a process for the investigation of
complaints against a governor has led to the Ministry of Devolution, a key state organ under the
national executive, providing a guideline for investing complaints against a governor. However,
the guideline does not provide much direction on how the process should be carried out, and the
evidence that should be collected when investigating complaints against a governor.
The legal power of removing a governor from office is invested solely in the Senate. This means
that the Senate carries the mandate of exercising oversight over counties, impeaching a governor,
and protecting the interest of county governments. This article explores the impeachment of a
governor in Kenya, focusing on the legal framework, procedures, and implications. The
Constitution provides that a sitting governor could be impeached for gross violation of the
national or county constitution, serious misconduct, abuse of office, gross mismanagement of the
county government, or crimes under national or international human rights.
Voting and decision-making

Voting on the special resolution takes place as follows: (a) If the special resolution relates to the
grounds of impeachment, the resolution is passed if at least two-thirds of members of the county
assembly vote in support; or (b) If the special resolution is for other constitutional grounds, the
resolution is passed if at least two-thirds of the members vote in support, needed to remove a
governor.
The Governor shall have the right to appear and be represented before the assembly during those
proceedings.
The committee, in the public interest, or having considered allegations against the Governor,
prepares its report which it tables in the assembly. The report may contain a resolution or a
recommendation to the assembly. The resolution, if contained in a report, must be supported by
at least three-fifths of the members of the committee. If the report or the recommendations of the
committee provide for the removal of the Governor, then the assembly shall consider the report
or the recommendations of the assembly forthwith.

Case studies and analysis

After examining the provisions of the Constitution of Kenya, specifically Article 181(1), the
impeachment process in Article 181(2), and the relevant sections of the County Governments
Act, various Kenyan cases and legal and non-legal factors, as well as the international legal
framework, the articles make the reform proposals.
For the first time in the history of Kenya, a sitting governor was removed from office through a
successful impeachment process. Following the impeachment of Ferdinand Ndung'u Waititu, the
governor for Kiambu County in January 2020, the country was divided on whether to celebrate
the achievements of the duly elected representatives or to mourn the death of devolution.
Emotions ran high, and politicians struggled to rationalize the verdict by the Senate, the County
Assembly, and the court process. The judgment can be profound, and Nairobi gubernatorial, the
Mwiti case, involves interrelated legal and non-legal concerns.
5.1. Notable Impeachment Cases
With such a high number of impeachment motions, it is essential, therefore, to note the black
letter law that each motion is up against. This may be the case since most of these motions
proceeded to the Senate. The legal implications are untested in the courts, leaving room for
speculation and the potential for inconsistent legal positions, leading to dire consequences. A
detailed analysis of the legal implications of the impeachment process may curtail hostility,
lawsuits, dismissal from office, unwarranted expenditure on impeachment, and ultimately, a lack
of closure on the issue of impeachment.
The impeachment of Kiambu County Governor, Ferdinand Waititu, brought the process to public
attention and raised questions on the political, legal, and practical implications of impeaching a
sitting governor. Although Waititu still enjoys his mandate, other governors were not as lucky,
with Nairobi County Governor, Mike Sonko; Tharaka Nithi County Governor, Onesmus
Muthomi Njuki; and Nyeri County Governor, Nderitu Gachagua setting the stage for the Waititu
impeachment proceedings. In fact, since the promulgation of the modern Constitution, many
governors have faced impeachment motions, including; Busia County Governor, Sospeter
Ojaamong; Governor Moses Lenolkulal for Samburu County; Manyara Engineer Esau for the
Tana River County; Mutahi Kahiga for Nyeri County; and Governor Chacha Murungi for Thachi
county.