REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E419 OF 2023
BETWEEN
OKIYA OMTATAH OKOITI…………………………………….1 ST PETITIONER
ELIUD KARANJA MATINDI………………………………….2 ND PETITIONER
BENSON ODIWUOR OTIENO………………………………..3 RD PETITIONER
BLAIR ANGIMA OIGORO…………………………………….4 TH PETITIONER
VERSUS
THE ATTORNEY GENERAL……………………………….1 ST RESPONDENT
THE NATIONAL ASSEMBLY......................................2 ND RESPONDENT
THE SENATE………………………………………………….3 RD RESPONDENT
AND
THE COUNTY ASSEMBLIES’ FORUM (CAF)………1 ST INTERESTED PARTY
THE COUNCIL OF COUNTY GOVERNORS (COG)..2 ND INTERESTED PARTY
THE KENYA LAW REFORM COMMISSION…………3 RD INTERESTED PARTY
JUDGMENT
Petitioners’ case
This petition challenges the constitutionality of sections 11(1) (c), (8), 11A (1) (b) and 33 (2-9A) of the County Government Act, No. 17 of 2012 (the impugned provisions) which provide for the impeachment of Governors, Deputy Governors, county Assembly Speakers and Deputy Speakers.
The challenge to the impugned provisions is premised on the grounds that they contravene the principles of natural justice and do not provide for a fair trial before an independent tribunal in the removal of these county officers from public office thus, contrive articles 25(c), 50(1) & 2(d) and 236 of the Constitution.
The petitioners contended that whereas the impeachment of governors, their deputies and speakers and their deputies under the impugned provisions is modelled on the impeachment of the President, Deputy President and Cabinet Secretaries where the Constitution itself denies them a fair trial before an independent tribunal under articles 145, 150 and 152 (6-10) of the Constitution, once impeachment was imported into an ordinary legislation, it lost the immunity under article 2(3) of the Constitution.
It was the petitioners’ case, that the Constitution did not contemplate the removal of governors and speakers and their deputies by impeachment under articles 178(3) and 181(2) of the Constitution and, therefore, any law enacted by Parliament to actualize impeachment, must be in accord with articles 25(c), 50(1) and (2) and 236 of the Constitution.
The petitioners were of the view, that where a county assembly impeaches a governor, a speaker, or their deputies, the law must allow for the formation of a tribunal appointed by the Chief Justice to conduct the trial, with the outcome subject to an appeal to the Supreme Court for final determination under articles 163 (3) (b) (ii) and 163 (7) of the Constitution. They were also of the view, that the current situation where accused officials can only appeal to the High Court after the event does not cure violations of articles 25(c), 50(1) & (2) (d) and 236 of the Constitution.
The petitioners took issue with section 33 of the County Government Act for involving the Senate in the impeaching of governors and their deputies instead of the Members of County Assemblies. They argued that the 47 voting delegations in the Senate are composed of Senators elected from across the country, who are not part of the electoral constituency for a governor or deputy governor being impeached. Furthermore, the Senate being a political body, cannot meet the threshold for an impartial tribunal and article 96 of the Constitution does not envisage the Senate as having a role to play in the impeachment process.
The petitioners asserted that the impeachment or recall of elected leaders constitutes a political process that hinges on the act of voting in accordance with article 1(3) (a) of the Constitution, hence it is logical that the individuals who have elected a representative participate in the impeachment motions.
The petitioners maintained that the threshold for removing a county governor from office on grounds specified in article 181(1) (a-c) of the Constitution and removing speakers of county assemblies and their deputies under article 178(3) as read with section 11 and 11A of the County Governments Act must be objectively established by an impartial and independent body and conform with the Constitution, since it overturns the will of the people and extinguishes the affected person’s political rights guaranteed article 38(3) (c) of the Constitution.
The petitioners argued that where sovereign power is exercised under auspices of article 1(2) of the Constitution, any exercise of that mandate is only valid when undertaken in a process enjoying the same safeguards as apply to judicial processes. According to the petitioners, article 38 (3) (c) of the Constitution entrenches the right to hold office by a person who has been elected. This right is ring fenced by other rights under articles 25 (c), 27, 47 and 50(1) of the Constitution and can only be limited within the dictates of article 24 of the Constitution.
The petitioners asserted that apart from article 131 (1) (b) of the Constitution, no other provision exclusively provides for legislators and not members of the public to both accuse public officials and adjudicate the process of investigating and substantiating the grounds for their removal from office. The removal of any other public officers must therefore involve a formal trial and a finding of culpability to the required standard, before an impartial and independent tribunal.
The petitioners stated that pursuant to article 236 (b) of the Constitution, the irreducible minimum of due process of law is to ensure that one is subjected to a fair trial before an impartial and independent tribunal. Since the impugned provisions are outside the bill of Rights, Parliament has no mechanism of limiting it. In that respect, the petitioners contended that by virtue of articles 1, 94(1), 3(1), 10, 20, 21, 24, 2(1-3), 93(2) and 94(4) and 2(4) of the Constitution, Parliament cannot extinguish rights of elected county governors, speakers and their deputies under article 38(3) (c), 25(c), 27, 50(1) & (2) and 236 by invoking article 24. Only the Constitution can abrogate those rights where it clearly extinguishes them.
It was the petitioners’ position, that the impugned provisions limit the sovereign power of the people by not providing a removal process that meets the purposes, values and principles of the Constitution. The impugned provisions are further discriminatory against people who hold the office of the county governor; speaker or their deputies because they do not hand over the impeachment motion upheld by the assembly to an independent and impartial tribunal in the judiciary to hear and determine with finality the impeachment case against them.
The petitioners asserted that section 33(1-9A) of the County Governments Act is discriminatory when the threshold vote for removing a county governor in the Senate is compared to that for impeaching the President. Further, despite the fact that governors, members of parliament and members of the county assembly are all elected through the same process and despite the similarity in the grounds for their removal from office, the process for removal is different.
The petitioners contended that contrary to the provisions of sections 45 and 48 of the Elections Act (No. 24 of 2011), a governor/deputy governor does not enjoy the safeguard of a judicial process and can face impeachment by the county assembly as frequently as the assembly desires.
The petitioners argued that section 33(1-8) of the County Governments Act is void for vagueness as it does not clearly state what is meant by (a) gross violation of the 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; or (d) physical or mental incapacity to perform the functions or office of county governor. Sections 11(1) (c), (8) and 11A (1) (b) of the County Governments Act are also void for the same reasons.
The petitioners posited that the impugned provisions lack adequate check and balances and permit members of county assemblies who form alliances and collaborate with likeminded senators to impeach and oust governors from office for personal/ political motivations. The provisions are not aligned with the Constitution thus, the court should quash.
According to the petitioners, a constitutional impeachment process envisaged under articles 178(3) and 181(2) should entail an impeachment motion for the removal of a county governor being tabled in a county assembly supported by at least one third of members of the assembly. If approved by at least two thirds of all members of the assembly, the motion should be transmitted to the Chief Justice to appoint an independent and impartial tribunal to investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act on the recommendation.
The composition of the tribunal should be similar to that under articles 158, 168 and 251 of the Constitution. Upon appointment of the tribunal, the President should suspend the governor concerned on half pay until the tribunal makes its verdict.
The other option, the petitioners opined, is a law providing for the establishment of a tribunal appointed by the Chief Justice to oversee the trial of the governor, speaker, or deputies impeached by county assemblies. The verdict of this trial should be subject to appeal to the supreme Court for a final decision in line with articles 163(3) (b) (ii) and 163(7) of the Constitution.
Parliament could also enact legislation giving the Supreme Court the authority envisioned under article 163(3) (b) (ii) and (7) of the Constitution to hear and determine appeals arising from the tribunals established under such legislation.
The petitioner contended that county governors and speakers are public officers and therefore enjoy the immutable protection under article 236(b) of the Constitution. Their impeachment process should mirror that outlined in articles 158, 168 and 251 of the Constitution. Based on the above arguments, the petitioners sought the following relief:
A declaration be and is hereby issued that it is unconstitutional for a county assembly to impeach (accuse) an official, put him/her on trial, convict the individual, and impose the penalty of disqualification.
A declaration be and is hereby issued that officials impeached by Kenya's unicameral county assemblies must be put on trial before an independent and impartial tribunal or body.
A declaration be and is hereby issued that sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 are unconstitutional and, therefore, invalid, null and void.
A declaration be and is hereby issued that by enacting sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 the National Assembly and the Senate violated the Constitution of Kenya, 2010.
A declaration be and is hereby issued that the role of the Senate under Article 96 of the Constitution does not include being the trial chamber for county officials impeached by county assemblies.
A declaration be and is hereby issued that the use of the Senate as the trial chamber for impeachments that are done by county assemblies is unconstitutional and, therefore, invalid, null and void.
A declaration be and is hereby issued that under the Constitution of Kenya, 2010, the Senate can only be used as a trial chamber for an impeached President or Deputy President.
A declaration be and is hereby issued that legislation for the removal of a county governor or speaker, or their deputies, must provide for adjudication before an impartial and independent tribunal of body under the judiciary.
An order be and is hereby issued quashing sections 11(1)(C), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012.
An order be and is hereby issued that each party bears their costs of this petition.
The Honourable Court be pleased to grant any other relief the court may deem just to grant.
1 st respondents’ case
The 1 st respondent, (the Attorney General), opposed the petition through grounds of opposition. The Attorney General contends that the petition does not disclose how the impugned provisions are inconsistent the Constitution; the petition seeks to usurp the mandate of legislature thus, and offends the doctrine of separation of powers.
According to the Attorney General, members of the county assembly represent the will of the people and being the creatures of the law, enjoy the presumption that they are committed to the rule of law. The petitioners’ apprehension that the impugned sections are allegedly being abused or are likely to be abused ought to be addressed through the legal mechanisms on a case by case basis.
2 nd respondent’s case
The 2 nd respondent (the National Assembly) opposed the petition through a replying affidavit sworn by Samuel Njoroge, the Clerk of the National Assembly on behalf of the National Assembly. The National Assembly contended through Mr. Njoroge, that the County Governments Act was enacted in line articles 1(3) (a), 94, 96, 178(3) and 181(2) of the Constitution. Members of the public were given an opportunity to make views with respect to the Act, including the impugned provisions, before the enactment of the County Governments (Amendment) Act, 2020.
The National Assembly took the view, that the 1 st petitioner being a Senator, has an opportunity under article 109(5) of the Constitution to introduce legislation in Parliament and amend, repeal, or replace provisions of the County Governments Act, he seeks to have declared unconstitutional by the Court.
The National Assembly the allegation that the impugned provisions offend articles 25(c) and 50(1) of the Constitution because according to those provisions, an affected governor, speaker or the deputy is given an opportunity to respond to the charges contained in the impeachment motion before the county assembly, and the Senate and can challenge the impeachment proceedings in court.
The National Assembly asserted that according to the decision in James Wahome Ndegwa v Zachary Mwangi Njeru & 5 others [2021] eKLR, speakers and the deputy speakers of county governments when voted out by 75% of members of the assembly, it amounts to a vote of no confidence by majority of the members of the county assembly who represent 75% of the people in that particular county. They do not need a further tribunal to confirm that the county has lost confidence in the officers holding those offices.
It was the National Assembly’s position that contrary to the petitioners’ allegations the grounds for removal of county governors and speakers are clear and the definition of terms gross misconduct has been defined by Professor Yash Pal Ghai in his book. The court should be guided by the object and purposes of the Act in determining the constitutionality of the impugned provisions.
The National Assembly maintained that the petition is misleading the court into not only usurping but also dictating the powers of the legislature. Under articles 178(3) and 181 (2) of the Constitution Parliament is mandate to enact legislation providing for the procedure for the removal of a county governor and speaker of the county assembly.
The National Assembly also stated that members of the county assembly represent the will of the people and being the creatures of the law, enjoy the presumption that they are committed to the rule of law. As such, the petitioners’ apprehension that the impugned provisions are allegedly being abused or are likely to be abused ought to be addressed through the legal mechanisms on a case by case basis.
In the National Assembly’s view, the process of removing from office county governors, speakers or their deputies is not discriminatory and ought to be similar to that of the President and Deputy President as the respective office holders are either directly elected into office by the people or elected by representatives of the people whereas judges, ODPP and members of the Constitutional Commission are appointed by the President subject to approval by the National Assembly.
The National Assembly averred that the petition is res judicata to the extent that the constitutionality of section 33 of the County Governments Act has been challenged before and a decision rendered by the Court. Further that issues raised on the unconstitutionality of the sections on impeachment of county officials were raised in Andrew Ombwayo v Clerk of the National Assembly [2022] eKLR; Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR and Martin Nyaga Wambora v Speaker of Senate & 6 others [2014] eKLR.
The National Assembly cited article 106 of the Constitution for the position that the law as enacted is the same for both the Speakers of Parliament and those of the County Assemblies. It stated that by virtue of article 94(1) and (5) of the Constitution, only Parliament can amend or repeal existing legislations.
3 rd respondent’s case
The Senate (the 3 rd respondent) opposed the petition through a replying affidavit sworn by Jeremiah Nyegenye, CBS, the Clerk of the Senate. The Senate also asserted that the petition is res judicata and urged the court to be guided by the decision in the Martin Wambora Case (supra).
The Senate reiterated that the County Governments Act was enacted in line with the provisions of articles 1(3) (a), 94, 96, 178(3), 181(2), 200(1) and (2) (c) of the Constitution; there was public participated during the enactment process; there is no violation of article 25 (c) and 50 (1) of the Constitution and an affected officer has an opportunity to respond to charges in the motion before the county assembly, senate and can appeal to the court.
The Senate urged the court to be guided by the holding in the Mwangaza v County Assembly of Meru & another; Council of Governors (Interested Party) [2023] KECA 1599 (KLR). According to the Senate, the process of removal of county officers is anchored in the Constitution is not discriminatory as it is similar to that of the President and Deputy President being elected officer. This is unlike the position regarding the DPP; judges and members of independent commissions.
The Senate posited that in enacting the County Governments Act, Parliament prescribed the role of removal of county officers to the county assembly and the Senate in order to give effect to Chapter Eleven of the Constitution and to ensure that the Senate performs its constitutional mandate as set out in article 96 of the Constitution. The test for determining whether the impugned sections are discriminatory has not been met.
The Senate relied on the decisions in Institute of Social Accountability & Another v National Assembly & 4 others [2015] eKLR and Council of Governors & 3 others v The Senate & 53 others [2015] eKLR in determining the constitutionality of the impugned provisions. According to the Senate, the object and purpose of the impugned provisions is to give effect to articles 178 and 181 of the Constitution; enhance accountability of elected state officers by dint of articles 178 and 180 of the Constitution and operationalize the procedure for removal of those state officers. Parliament exercised its mandate under articles 178(3), 181(2) and 200 (2) (c)of the Constitution thus, the impugned sections are not unconstitutional.
The Senate urged the court to be guided by article 259 of the Constitution and the decisions in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR and In the Matter of Kenya National Commission on Human Rights [2014] eKLR on the interpretation of the Constitution.
The Senate contended it plays a role in protecting interests of governments and Parliament was within its constitutional mandate to confer on it the role of hearing and determining charges preferred against a county governor or deputy after an impeachment motion has been passed by the county assembly.
By virtue of articles 179(1) and 185(3) of the Constitution, the county assembly being the organ that exercises oversight over the county executive committee which the county governor and deputy governor are members of, Parliament was within its constitutional mandate to confer the role of impeachment of these officers on the county assemblies.
The Senate asserted that the impeachment process against county officers gives effect to the provisions of the article 10 of the Constitution on public participation. In that respect, the orders sought in the petition would violate the doctrine of separation of powers.
1 st petitioner’s rejoinder
The 1 st petitioner filed supplementary affidavit sworn on 19 th January 2024. He substantively reiterates the contents of the petition and faulted Parliament for acting against the intentions of the framers of the Constitution and beyond its powers when prescribing removal of county officials by impeachment to what was captured in the Final Report of the Committee of Experts on Constitutional Review, dated 11 th October 2010 page 126.
The 1 st petitioner stated that articles 1(1), 1(3), 2(2), 2(3),2(4), 93(2) and 94 (4) of the Constitution bar Parliament from enacting legislation outside the confines of the Constitution, however popular it may be with masses. Reliance was placed on the decision in Katiba Institute & another v Attorney General& another [2017] eKLR.
According to the petitioners. The 1 st petitioner’s political status does not preclude him from bringing this petition. Irrespective of how a public officer joined public service, once he becomes a public officer, the Constitution provides how all public officers should be treated, including removal from office, be it by a judicial/quasi-judicial process; recall; vote of no confidence or impeachment under articles 103 (1) (c) & (g), 158, 168, 178(3), 181(3), 236(b), 245 (7 & 8), 251, 104, 145, 150 and 152 (6-10).
The petitioners denied that the petition is res judicata because the grounds for challenging the constitutionality of the impugned sections are different and parties too are also different. A plea of res judicata should be supported by evidence.
The 1 st petitioners maintained that being part of the Constitution, a motion of no confidence under article 106 (2) (c) is protected by article 2(3) of the Constitution. However, once the same is exported into a statute, it does not enjoy the protection and must stand up to the edict in article 2(4) as in this case.
The 1 st petitioner deposes that unlike a motion of no confidence under article 106 (2) (c); section 11(1) (c) of the County Government Act as read together with section 11(2), an article of impeachment on any of the grounds in section 2(a) to 2(e) requires a finding by a county assembly that the impeached official has violated the law. And whereas the vote of no confidence simply removes a person from office and can still serve in the public service or assume the same office under different circumstances, an impeachment is an absolute bar to holding any public office again.
The petitioners asserted that the decision in the decision in Mwangaza v County Assembly of Meru & another; Council of Governors (Interested Party) (supra), the court was not called to determine the foundational issues herein, that is whether the Constitution reserves removals by impeachment only for members of the national executive, being the President, the Deputy President and Cabinet Secretaries, among others.
The petitioners dismissed the argument that county officials are impeached because they are elected, yet Cabinet Secretaries are not elected but are impeached by the National Assembly. Removal of governors is discriminatory when compared to that of members of county assemblies, members of the National Assembly and senators.
According to the petitioners, the doctrine of separation of powers is not in issue in this petition. The court has been asked to determine whether the impugned sections are valid or void.
2 nd petitioner’s rejoinder
The 2 nd petitioner also filed a supplementary affidavit asserting that the presumption of constitutionality of an Act of Parliament no longer applies when the impugned sections relate to the provisions of the Bill of rights. The impugned provisions bestow upon members of a county assembly the roles of the accuser, prosecutor and the judge in a process resulting in the removal from office a county governor, deputy governor, speaker or deputy speaker.
According to the 2 nd petitioner, the allegation of res judicata has not been unsubstantiated. In any event the decision in th e Martin Wambora cases (supra) were made before the County Governments (Amendment) Act, 2020 which amended sections 11 and introduced new sections 11 A (1) (b) and 33 (9A) of the County Governments Act.
The 2 nd petitioner maintained that unlike removal of the President and Deputy President from office by impeachment under article 145 and 150 of the Constitution, a statutory provision for removal from office of a county governor and a deputy county governor, with the resulting adverse effects on the affected person’s fundamental rights and freedoms under the Bill of Rights, cannot elevate itself to the same status as a constitutional provision.
It was the 2 nd petitioner’s position that unlike the removal of the Speaker and deputy speaker of the National Assembly and Senate from office through a vote of no confidence by members of Parliament under article 106 (2) (c), a speaker and deputy speaker of a county assembly cannot be removed from office by way of a statutory mandated vote of no confidence by members of the county assembly as this violates, among others, the right to a fair hearing before a court or another independent and impartial tribunal or body.
The interested parties did not file responses to the petition.
Submissions
This petition was disposed of through written submissions with oral highlights.
1 st petitioner’s submissions
The 1 st petitioner filed written submissions which he briefly highlighted in support of their position on this petition. The 1 st petitioner argued that the doctrine of res judicata does not apply in this case. He relied on the decisions in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR); Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR); Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR and Okiya Omtatah Okoiti & another v Attorney General & 6 others [2014] eKLR.
The 1 st petitioner also relied on the decisions in United States v. Butler , 297 U.S. 1(1936) and Geoffrey Andare v Attorney General & 2 others [2016] eKLR for the argument that the petition does not offend the doctrine of separation of powers because it challenges the constitutional validity of the impugned provisions.
The 1 st petitioner argued that an impeachment cannot be anchored on statute even where the provisions providing for impeachment in the Constitution are exported into legislation. It can only be a constitutional remedy and not a statutory remedy. Article 2(3) of the Constitution does not protect legislation from being voided under article 2(4) for being inconsistent with the Constitution. The 1 st petitioner relied on the decisions in Tinyefuza v Attorney General of Uganda, Constitutional Petition No. 1 of 1997 (1997 UGCC 3) and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR.
It was the 1 st petitioner’s position that a fair hearing or trial cannot be achieved through an impeachment process because the process is not conducted through an impartial and independent forum. Impeachment of county officials not being anchored in the Constitution but in the statute, it is not immune from the requirement of article 2(4) of the Constitution.
The 1 st petitioner maintained that impeachment of county officials is not provided for in the Constitution as is the case for President, Deputy President and Cabinet Secretaries. The Speakers of the two houses of parliament are removed through a simple vote of no confidence under article 106 (2) (c) while the DPP, judges of superior courts and members of constitutional commissions and holders of independent offices are removed through judicial processes before special independent tribunals.
The 1 st petitioner argued that the petition challenges how Parliament exercised its mandate under articles 178(3), 181(2) and 200 (2) (c) of the Constitution. Exercise of legislative mandate should be in line with the provisions of articles 1(3), (2), 10, 19(1), 20(1), 21, 24, 93 (2), 94(4) and 259 (1). To the extent that the impugned sections do not provide for a fair hearing and due process before an independent and impartial tribunal or body, they violate articles24 (2) & (3), 25(c), 50(1) & 2(d) and 236 (b) of the Constitution.
The 1 st petitioner argued that Parliament cannot limit article 236(b) of the Constitution because it lies outside the Bill of rights and the Senate plays no role in the impeachment of county officials. Reliance was placed on the decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and Marbury v Madison, 5 U.S. 137 (1803).
According to the 1 st petitioner, it is not valid for an impeachment to be taken outside the electoral area. The electoral base of the Senate is national and totally different from the electoral base of a county assembly which is the county. For that reason, section 33 of the County Governments Act provides for an unnatural state of affairs where a county assembly impeaches its governor or deputy governor, then p
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E419 OF 2023
BETWEEN
OKIYA OMTATAH OKOITI…………………………………….1 ST PETITIONER
ELIUD KARANJA MATINDI………………………………….2 ND PETITIONER
BENSON ODIWUOR OTIENO………………………………..3 RD PETITIONER
BLAIR ANGIMA OIGORO…………………………………….4 TH PETITIONER
VERSUS
THE ATTORNEY GENERAL……………………………….1 ST RESPONDENT
THE NATIONAL ASSEMBLY......................................2 ND RESPONDENT
THE SENATE………………………………………………….3 RD RESPONDENT
AND
THE COUNTY ASSEMBLIES’ FORUM (CAF)………1 ST INTERESTED PARTY
THE COUNCIL OF COUNTY GOVERNORS (COG)..2 ND INTERESTED PARTY
THE KENYA LAW REFORM COMMISSION…………3 RD INTERESTED PARTY
JUDGMENT
Petitioners’ case
This petition challenges the constitutionality of sections 11(1) (c), (8), 11A (1) (b) and 33 (2-9A) of the County Government Act, No. 17 of 2012 (the impugned provisions) which provide for the impeachment of Governors, Deputy Governors, county Assembly Speakers and Deputy Speakers.
The challenge to the impugned provisions is premised on the grounds that they contravene the principles of natural justice and do not provide for a fair trial before an independent tribunal in the removal of these county officers from public office thus, contrive articles 25(c), 50(1) & 2(d) and 236 of the Constitution.
The petitioners contended that whereas the impeachment of governors, their deputies and speakers and their deputies under the impugned provisions is modelled on the impeachment of the President, Deputy President and Cabinet Secretaries where the Constitution itself denies them a fair trial before an independent tribunal under articles 145, 150 and 152 (6-10) of the Constitution, once impeachment was imported into an ordinary legislation, it lost the immunity under article 2(3) of the Constitution.
It was the petitioners’ case, that the Constitution did not contemplate the removal of governors and speakers and their deputies by impeachment under articles 178(3) and 181(2) of the Constitution and, therefore, any law enacted by Parliament to actualize impeachment, must be in accord with articles 25(c), 50(1) and (2) and 236 of the Constitution.
The petitioners were of the view, that where a county assembly impeaches a governor, a speaker, or their deputies, the law must allow for the formation of a tribunal appointed by the Chief Justice to conduct the trial, with the outcome subject to an appeal to the Supreme Court for final determination under articles 163 (3) (b) (ii) and 163 (7) of the Constitution. They were also of the view, that the current situation where accused officials can only appeal to the High Court after the event does not cure violations of articles 25(c), 50(1) & (2) (d) and 236 of the Constitution.
The petitioners took issue with section 33 of the County Government Act for involving the Senate in the impeaching of governors and their deputies instead of the Members of County Assemblies. They argued that the 47 voting delegations in the Senate are composed of Senators elected from across the country, who are not part of the electoral constituency for a governor or deputy governor being impeached. Furthermore, the Senate being a political body, cannot meet the threshold for an impartial tribunal and article 96 of the Constitution does not envisage the Senate as having a role to play in the impeachment process.
The petitioners asserted that the impeachment or recall of elected leaders constitutes a political process that hinges on the act of voting in accordance with article 1(3) (a) of the Constitution, hence it is logical that the individuals who have elected a representative participate in the impeachment motions.
The petitioners maintained that the threshold for removing a county governor from office on grounds specified in article 181(1) (a-c) of the Constitution and removing speakers of county assemblies and their deputies under article 178(3) as read with section 11 and 11A of the County Governments Act must be objectively established by an impartial and independent body and conform with the Constitution, since it overturns the will of the people and extinguishes the affected person’s political rights guaranteed article 38(3) (c) of the Constitution.
The petitioners argued that where sovereign power is exercised under auspices of article 1(2) of the Constitution, any exercise of that mandate is only valid when undertaken in a process enjoying the same safeguards as apply to judicial processes. According to the petitioners, article 38 (3) (c) of the Constitution entrenches the right to hold office by a person who has been elected. This right is ring fenced by other rights under articles 25 (c), 27, 47 and 50(1) of the Constitution and can only be limited within the dictates of article 24 of the Constitution.
The petitioners asserted that apart from article 131 (1) (b) of the Constitution, no other provision exclusively provides for legislators and not members of the public to both accuse public officials and adjudicate the process of investigating and substantiating the grounds for their removal from office. The removal of any other public officers must therefore involve a formal trial and a finding of culpability to the required standard, before an impartial and independent tribunal.
The petitioners stated that pursuant to article 236 (b) of the Constitution, the irreducible minimum of due process of law is to ensure that one is subjected to a fair trial before an impartial and independent tribunal. Since the impugned provisions are outside the bill of Rights, Parliament has no mechanism of limiting it. In that respect, the petitioners contended that by virtue of articles 1, 94(1), 3(1), 10, 20, 21, 24, 2(1-3), 93(2) and 94(4) and 2(4) of the Constitution, Parliament cannot extinguish rights of elected county governors, speakers and their deputies under article 38(3) (c), 25(c), 27, 50(1) & (2) and 236 by invoking article 24. Only the Constitution can abrogate those rights where it clearly extinguishes them.
It was the petitioners’ position, that the impugned provisions limit the sovereign power of the people by not providing a removal process that meets the purposes, values and principles of the Constitution. The impugned provisions are further discriminatory against people who hold the office of the county governor; speaker or their deputies because they do not hand over the impeachment motion upheld by the assembly to an independent and impartial tribunal in the judiciary to hear and determine with finality the impeachment case against them.
The petitioners asserted that section 33(1-9A) of the County Governments Act is discriminatory when the threshold vote for removing a county governor in the Senate is compared to that for impeaching the President. Further, despite the fact that governors, members of parliament and members of the county assembly are all elected through the same process and despite the similarity in the grounds for their removal from office, the process for removal is different.
The petitioners contended that contrary to the provisions of sections 45 and 48 of the Elections Act (No. 24 of 2011), a governor/deputy governor does not enjoy the safeguard of a judicial process and can face impeachment by the county assembly as frequently as the assembly desires.
The petitioners argued that section 33(1-8) of the County Governments Act is void for vagueness as it does not clearly state what is meant by (a) gross violation of the 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; or (d) physical or mental incapacity to perform the functions or office of county governor. Sections 11(1) (c), (8) and 11A (1) (b) of the County Governments Act are also void for the same reasons.
The petitioners posited that the impugned provisions lack adequate check and balances and permit members of county assemblies who form alliances and collaborate with likeminded senators to impeach and oust governors from office for personal/ political motivations. The provisions are not aligned with the Constitution thus, the court should quash.
According to the petitioners, a constitutional impeachment process envisaged under articles 178(3) and 181(2) should entail an impeachment motion for the removal of a county governor being tabled in a county assembly supported by at least one third of members of the assembly. If approved by at least two thirds of all members of the assembly, the motion should be transmitted to the Chief Justice to appoint an independent and impartial tribunal to investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act on the recommendation.
The composition of the tribunal should be similar to that under articles 158, 168 and 251 of the Constitution. Upon appointment of the tribunal, the President should suspend the governor concerned on half pay until the tribunal makes its verdict.
The other option, the petitioners opined, is a law providing for the establishment of a tribunal appointed by the Chief Justice to oversee the trial of the governor, speaker, or deputies impeached by county assemblies. The verdict of this trial should be subject to appeal to the supreme Court for a final decision in line with articles 163(3) (b) (ii) and 163(7) of the Constitution.
Parliament could also enact legislation giving the Supreme Court the authority envisioned under article 163(3) (b) (ii) and (7) of the Constitution to hear and determine appeals arising from the tribunals established under such legislation.
The petitioner contended that county governors and speakers are public officers and therefore enjoy the immutable protection under article 236(b) of the Constitution. Their impeachment process should mirror that outlined in articles 158, 168 and 251 of the Constitution. Based on the above arguments, the petitioners sought the following relief:
A declaration be and is hereby issued that it is unconstitutional for a county assembly to impeach (accuse) an official, put him/her on trial, convict the individual, and impose the penalty of disqualification.
A declaration be and is hereby issued that officials impeached by Kenya's unicameral county assemblies must be put on trial before an independent and impartial tribunal or body.
A declaration be and is hereby issued that sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 are unconstitutional and, therefore, invalid, null and void.
A declaration be and is hereby issued that by enacting sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 the National Assembly and the Senate violated the Constitution of Kenya, 2010.
A declaration be and is hereby issued that the role of the Senate under Article 96 of the Constitution does not include being the trial chamber for county officials impeached by county assemblies.
A declaration be and is hereby issued that the use of the Senate as the trial chamber for impeachments that are done by county assemblies is unconstitutional and, therefore, invalid, null and void.
A declaration be and is hereby issued that under the Constitution of Kenya, 2010, the Senate can only be used as a trial chamber for an impeached President or Deputy President.
A declaration be and is hereby issued that legislation for the removal of a county governor or speaker, or their deputies, must provide for adjudication before an impartial and independent tribunal of body under the judiciary.
An order be and is hereby issued quashing sections 11(1)(C), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012.
An order be and is hereby issued that each party bears their costs of this petition.
The Honourable Court be pleased to grant any other relief the court may deem just to grant.
1 st respondents’ case
The 1 st respondent, (the Attorney General), opposed the petition through grounds of opposition. The Attorney General contends that the petition does not disclose how the impugned provisions are inconsistent the Constitution; the petition seeks to usurp the mandate of legislature thus, and offends the doctrine of separation of powers.
According to the Attorney General, members of the county assembly represent the will of the people and being the creatures of the law, enjoy the presumption that they are committed to the rule of law. The petitioners’ apprehension that the impugned sections are allegedly being abused or are likely to be abused ought to be addressed through the legal mechanisms on a case by case basis.
2 nd respondent’s case
The 2 nd respondent (the National Assembly) opposed the petition through a replying affidavit sworn by Samuel Njoroge, the Clerk of the National Assembly on behalf of the National Assembly. The National Assembly contended through Mr. Njoroge, that the County Governments Act was enacted in line articles 1(3) (a), 94, 96, 178(3) and 181(2) of the Constitution. Members of the public were given an opportunity to make views with respect to the Act, including the impugned provisions, before the enactment of the County Governments (Amendment) Act, 2020.
The National Assembly took the view, that the 1 st petitioner being a Senator, has an opportunity under article 109(5) of the Constitution to introduce legislation in Parliament and amend, repeal, or replace provisions of the County Governments Act, he seeks to have declared unconstitutional by the Court.
The National Assembly the allegation that the impugned provisions offend articles 25(c) and 50(1) of the Constitution because according to those provisions, an affected governor, speaker or the deputy is given an opportunity to respond to the charges contained in the impeachment motion before the county assembly, and the Senate and can challenge the impeachment proceedings in court.
The National Assembly asserted that according to the decision in James Wahome Ndegwa v Zachary Mwangi Njeru & 5 others [2021] eKLR, speakers and the deputy speakers of county governments when voted out by 75% of members of the assembly, it amounts to a vote of no confidence by majority of the members of the county assembly who represent 75% of the people in that particular county. They do not need a further tribunal to confirm that the county has lost confidence in the officers holding those offices.
It was the National Assembly’s position that contrary to the petitioners’ allegations the grounds for removal of county governors and speakers are clear and the definition of terms gross misconduct has been defined by Professor Yash Pal Ghai in his book. The court should be guided by the object and purposes of the Act in determining the constitutionality of the impugned provisions.
The National Assembly maintained that the petition is misleading the court into not only usurping but also dictating the powers of the legislature. Under articles 178(3) and 181 (2) of the Constitution Parliament is mandate to enact legislation providing for the procedure for the removal of a county governor and speaker of the county assembly.
The National Assembly also stated that members of the county assembly represent the will of the people and being the creatures of the law, enjoy the presumption that they are committed to the rule of law. As such, the petitioners’ apprehension that the impugned provisions are allegedly being abused or are likely to be abused ought to be addressed through the legal mechanisms on a case by case basis.
In the National Assembly’s view, the process of removing from office county governors, speakers or their deputies is not discriminatory and ought to be similar to that of the President and Deputy President as the respective office holders are either directly elected into office by the people or elected by representatives of the people whereas judges, ODPP and members of the Constitutional Commission are appointed by the President subject to approval by the National Assembly.
The National Assembly averred that the petition is res judicata to the extent that the constitutionality of section 33 of the County Governments Act has been challenged before and a decision rendered by the Court. Further that issues raised on the unconstitutionality of the sections on impeachment of county officials were raised in Andrew Ombwayo v Clerk of the National Assembly [2022] eKLR; Martin Nyaga Wambora v County Assembly of Embu & 37 others [2015] eKLR and Martin Nyaga Wambora v Speaker of Senate & 6 others [2014] eKLR.
The National Assembly cited article 106 of the Constitution for the position that the law as enacted is the same for both the Speakers of Parliament and those of the County Assemblies. It stated that by virtue of article 94(1) and (5) of the Constitution, only Parliament can amend or repeal existing legislations.
3 rd respondent’s case
The Senate (the 3 rd respondent) opposed the petition through a replying affidavit sworn by Jeremiah Nyegenye, CBS, the Clerk of the Senate. The Senate also asserted that the petition is res judicata and urged the court to be guided by the decision in the Martin Wambora Case (supra).
The Senate reiterated that the County Governments Act was enacted in line with the provisions of articles 1(3) (a), 94, 96, 178(3), 181(2), 200(1) and (2) (c) of the Constitution; there was public participated during the enactment process; there is no violation of article 25 (c) and 50 (1) of the Constitution and an affected officer has an opportunity to respond to charges in the motion before the county assembly, senate and can appeal to the court.
The Senate urged the court to be guided by the holding in the Mwangaza v County Assembly of Meru & another; Council of Governors (Interested Party) [2023] KECA 1599 (KLR). According to the Senate, the process of removal of county officers is anchored in the Constitution is not discriminatory as it is similar to that of the President and Deputy President being elected officer. This is unlike the position regarding the DPP; judges and members of independent commissions.
The Senate posited that in enacting the County Governments Act, Parliament prescribed the role of removal of county officers to the county assembly and the Senate in order to give effect to Chapter Eleven of the Constitution and to ensure that the Senate performs its constitutional mandate as set out in article 96 of the Constitution. The test for determining whether the impugned sections are discriminatory has not been met.
The Senate relied on the decisions in Institute of Social Accountability & Another v National Assembly & 4 others [2015] eKLR and Council of Governors & 3 others v The Senate & 53 others [2015] eKLR in determining the constitutionality of the impugned provisions. According to the Senate, the object and purpose of the impugned provisions is to give effect to articles 178 and 181 of the Constitution; enhance accountability of elected state officers by dint of articles 178 and 180 of the Constitution and operationalize the procedure for removal of those state officers. Parliament exercised its mandate under articles 178(3), 181(2) and 200 (2) (c)of the Constitution thus, the impugned sections are not unconstitutional.
The Senate urged the court to be guided by article 259 of the Constitution and the decisions in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR and In the Matter of Kenya National Commission on Human Rights [2014] eKLR on the interpretation of the Constitution.
The Senate contended it plays a role in protecting interests of governments and Parliament was within its constitutional mandate to confer on it the role of hearing and determining charges preferred against a county governor or deputy after an impeachment motion has been passed by the county assembly.
By virtue of articles 179(1) and 185(3) of the Constitution, the county assembly being the organ that exercises oversight over the county executive committee which the county governor and deputy governor are members of, Parliament was within its constitutional mandate to confer the role of impeachment of these officers on the county assemblies.
The Senate asserted that the impeachment process against county officers gives effect to the provisions of the article 10 of the Constitution on public participation. In that respect, the orders sought in the petition would violate the doctrine of separation of powers.
1 st petitioner’s rejoinder
The 1 st petitioner filed supplementary affidavit sworn on 19 th January 2024. He substantively reiterates the contents of the petition and faulted Parliament for acting against the intentions of the framers of the Constitution and beyond its powers when prescribing removal of county officials by impeachment to what was captured in the Final Report of the Committee of Experts on Constitutional Review, dated 11 th October 2010 page 126.
The 1 st petitioner stated that articles 1(1), 1(3), 2(2), 2(3),2(4), 93(2) and 94 (4) of the Constitution bar Parliament from enacting legislation outside the confines of the Constitution, however popular it may be with masses. Reliance was placed on the decision in Katiba Institute & another v Attorney General& another [2017] eKLR.
According to the petitioners. The 1 st petitioner’s political status does not preclude him from bringing this petition. Irrespective of how a public officer joined public service, once he becomes a public officer, the Constitution provides how all public officers should be treated, including removal from office, be it by a judicial/quasi-judicial process; recall; vote of no confidence or impeachment under articles 103 (1) (c) & (g), 158, 168, 178(3), 181(3), 236(b), 245 (7 & 8), 251, 104, 145, 150 and 152 (6-10).
The petitioners denied that the petition is res judicata because the grounds for challenging the constitutionality of the impugned sections are different and parties too are also different. A plea of res judicata should be supported by evidence.
The 1 st petitioners maintained that being part of the Constitution, a motion of no confidence under article 106 (2) (c) is protected by article 2(3) of the Constitution. However, once the same is exported into a statute, it does not enjoy the protection and must stand up to the edict in article 2(4) as in this case.
The 1 st petitioner deposes that unlike a motion of no confidence under article 106 (2) (c); section 11(1) (c) of the County Government Act as read together with section 11(2), an article of impeachment on any of the grounds in section 2(a) to 2(e) requires a finding by a county assembly that the impeached official has violated the law. And whereas the vote of no confidence simply removes a person from office and can still serve in the public service or assume the same office under different circumstances, an impeachment is an absolute bar to holding any public office again.
The petitioners asserted that the decision in the decision in Mwangaza v County Assembly of Meru & another; Council of Governors (Interested Party) (supra), the court was not called to determine the foundational issues herein, that is whether the Constitution reserves removals by impeachment only for members of the national executive, being the President, the Deputy President and Cabinet Secretaries, among others.
The petitioners dismissed the argument that county officials are impeached because they are elected, yet Cabinet Secretaries are not elected but are impeached by the National Assembly. Removal of governors is discriminatory when compared to that of members of county assemblies, members of the National Assembly and senators.
According to the petitioners, the doctrine of separation of powers is not in issue in this petition. The court has been asked to determine whether the impugned sections are valid or void.
2 nd petitioner’s rejoinder
The 2 nd petitioner also filed a supplementary affidavit asserting that the presumption of constitutionality of an Act of Parliament no longer applies when the impugned sections relate to the provisions of the Bill of rights. The impugned provisions bestow upon members of a county assembly the roles of the accuser, prosecutor and the judge in a process resulting in the removal from office a county governor, deputy governor, speaker or deputy speaker.
According to the 2 nd petitioner, the allegation of res judicata has not been unsubstantiated. In any event the decision in th e Martin Wambora cases (supra) were made before the County Governments (Amendment) Act, 2020 which amended sections 11 and introduced new sections 11 A (1) (b) and 33 (9A) of the County Governments Act.
The 2 nd petitioner maintained that unlike removal of the President and Deputy President from office by impeachment under article 145 and 150 of the Constitution, a statutory provision for removal from office of a county governor and a deputy county governor, with the resulting adverse effects on the affected person’s fundamental rights and freedoms under the Bill of Rights, cannot elevate itself to the same status as a constitutional provision.
It was the 2 nd petitioner’s position that unlike the removal of the Speaker and deputy speaker of the National Assembly and Senate from office through a vote of no confidence by members of Parliament under article 106 (2) (c), a speaker and deputy speaker of a county assembly cannot be removed from office by way of a statutory mandated vote of no confidence by members of the county assembly as this violates, among others, the right to a fair hearing before a court or another independent and impartial tribunal or body.
The interested parties did not file responses to the petition.
Submissions
This petition was disposed of through written submissions with oral highlights.
1 st petitioner’s submissions
The 1 st petitioner filed written submissions which he briefly highlighted in support of their position on this petition. The 1 st petitioner argued that the doctrine of res judicata does not apply in this case. He relied on the decisions in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR); Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR); Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR and Okiya Omtatah Okoiti & another v Attorney General & 6 others [2014] eKLR.
The 1 st petitioner also relied on the decisions in United States v. Butler , 297 U.S. 1(1936) and Geoffrey Andare v Attorney General & 2 others [2016] eKLR for the argument that the petition does not offend the doctrine of separation of powers because it challenges the constitutional validity of the impugned provisions.
The 1 st petitioner argued that an impeachment cannot be anchored on statute even where the provisions providing for impeachment in the Constitution are exported into legislation. It can only be a constitutional remedy and not a statutory remedy. Article 2(3) of the Constitution does not protect legislation from being voided under article 2(4) for being inconsistent with the Constitution. The 1 st petitioner relied on the decisions in Tinyefuza v Attorney General of Uganda, Constitutional Petition No. 1 of 1997 (1997 UGCC 3) and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR.
It was the 1 st petitioner’s position that a fair hearing or trial cannot be achieved through an impeachment process because the process is not conducted through an impartial and independent forum. Impeachment of county officials not being anchored in the Constitution but in the statute, it is not immune from the requirement of article 2(4) of the Constitution.
The 1 st petitioner maintained that impeachment of county officials is not provided for in the Constitution as is the case for President, Deputy President and Cabinet Secretaries. The Speakers of the two houses of parliament are removed through a simple vote of no confidence under article 106 (2) (c) while the DPP, judges of superior courts and members of constitutional commissions and holders of independent offices are removed through judicial processes before special independent tribunals.
The 1 st petitioner argued that the petition challenges how Parliament exercised its mandate under articles 178(3), 181(2) and 200 (2) (c) of the Constitution. Exercise of legislative mandate should be in line with the provisions of articles 1(3), (2), 10, 19(1), 20(1), 21, 24, 93 (2), 94(4) and 259 (1). To the extent that the impugned sections do not provide for a fair hearing and due process before an independent and impartial tribunal or body, they violate articles24 (2) & (3), 25(c), 50(1) & 2(d) and 236 (b) of the Constitution.
The 1 st petitioner argued that Parliament cannot limit article 236(b) of the Constitution because it lies outside the Bill of rights and the Senate plays no role in the impeachment of county officials. Reliance was placed on the decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and Marbury v Madison, 5 U.S. 137 (1803).
According to the 1 st petitioner, it is not valid for an impeachment to be taken outside the electoral area. The electoral base of the Senate is national and totally different from the electoral base of a county assembly which is the county. For that reason, section 33 of the County Governments Act provides for an unnatural state of affairs where a county assembly impeaches its governor or deputy governor, then p
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