Having participated in three impeachment proceedings, I have picked up some lessons, that I believe will be invaluable to members of County Assemblies considering impeaching their governor.
The first impeachment proceedings I participated in, emanated from the motion dated 22nd November 2022. The ill-fated impeachment attempt was brought to an abrupt halt by Justice Therepisa Cherere who sits in the Constitutional Division at the Meru High Court.
Consequently, members of the Meru County Assembly initiated a second impeachment motion dated 14th December 2022.
The motion was debated at the assembly, passed and referred to the Senate in line with Section 33 of the County Governments Act and Article 181 of the Kenyan Constitution.
The Senate chose to investigate the matter through a committee, which sat on 27th and 28th December 2022 to hear the respective cases of the County Assembly of Meru and the Governor of Meru.
By a report dated 30th December 2022, the Senate select committee acquitted the Governor and gave her a new lease of life. Thereafter, came a short-lived ‘honeymoon’ period of peace in Meru County lasting a few months.
The third impeachment motion also related to Meru Governor, Kawira Mwangaza, where thirty nine specific charges against the Governor were consolidated in seven broad counts.
The motion dated 16th of October 2023 was introduced in the County Assembly of Meru for debate on 25th October 2023.
The Senate resolved on 26th October 2023 , to investigate the matter by plenary rather than committee and scheduled hearings on 7th and 8th November 2023.
The Senate resolved to acquit the governor on all seven charges, saving her career the second time. The lessons herein are drawn from the three-impeachment proceedings.
The first lesson is Members of the County Assembly should take time in gathering evidence. Acknowledging the impeachment of a governor is a momentous affair as impeachment is a permanent bar to holding any public office in the country as was held in Sonko v County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022).
These are obviously grave consequences of an impeachment; which therefore, cannot be taken lightly.
Members of a County Assembly intending to impeach a Governor must meticulously collect evidence to support each and every charge levelled against the Governor.
If the process of collection of evidence is rushed, the result will be that the evidence fails to suffice.
Although the law allows for an impeachment motion to be reintroduced after three months, it is better to shoot once and hit the target than to keep trying as the bird may learn to fly without perching.
Additionally, the Supreme Court in both the Wambora and the Sonko cases, held that the standard of proof in impeachment cases is below the standard expected in criminal cases of beyond reasonable doubt; but slightly higher than the standard in civil cases of a balance of probabilities.
Secondly, the burden of proof lies with the County Assembly and the members must discharge this burden, first, at the Assembly and then before the Senate.
It is trite law that once a plaintiff/petitioner establishes their case by proof, the burden then shifts to the respondent to adduce evidence rebutting that assertion.
Sadly, most senators, including the lawyers in the house seem to misapprehend this legal principle on evidence. In both impeachment proceedings that were concluded before the Senate, the burden has been and remained on the Assembly to prove its case without requiring the governor to controvert that evidence.
While this may be informed by reasons other than purely legal principles, it leaves members of the County Assembly heavily burdened and with no assurances that even if they discharge that burden, their cases will be successful.
The third lesson is that when framing the charges and the particulars of the charge against the Governor, you must frame them in a manner that is easy to comprehend and relate to. Remember, while some senators are professors of the law, there are others whose level of education is basic at best. As such, your charge sheet, which in this case is the motion of impeachment, must be written in a manner that the least learned senator easily understands what the offence is and where the evidence is to be found. Ensure the evidence supporting each count is easy to find in your documents and easy to understand.
The fourth lesson; the Senate seats as a quasi-judicial body in considering impeachment proceedings. Anything you say or do before your case gets to the senate, can and will be used against you. Do not speak about the looming impeachment in press conferences, do not be seen to lobby for support of the impeachment motion and do not especially be seen to be incited by forces other than the misconduct of the governor you aim to impeach.
A statement that may seem inconsequential like a prayer from the council of elders may be taken out of context and christened an oathing ceremony, a tragedy that befell the Meru County members of the Assembly in their bid to impeach Governor Kawira Mwangaza. Treat the impeachment process as you would proceedings in court. You don’t ordinarily find litigants talking about the merits and demerits of a case before the same is filed in court.
The fifth lesson is to expect your adversary to use every trick available to them to defeat your case. This includes shifting goal-posts, appealing to the emotions of the senators and reframing the charges. Most senators lack the sagacity of a judge and will fall for these tricks. The issue of gender, for instance, will play a huge role if the impugned governor happens to be a female as was the case in the two impeachments against Governor Kawira Mwangaza.
The only solution to this is to gather as much evidence as is humanly possible, to overcome any appeals to sympathy. In the hearing of the impeachment against the Governor of Meru, gender and sexual innuendo took centre stage, over and above serious allegations of breach of the law like misuse of public funds, contempt of the Assembly and usurpation of the powers of constitutional or statutory bodies.
Expect your adversary to appeal to every manner of sympathy and strategize to defeat this. It is worrying that as it is currently, even presenting overwhelming evidence during impeachment proceedings may not assure your desired outcome.
Lesson number six is to present translations and captions that favour your case, in the event that you intend to rely on any media material that has conversations in vernacular language. The Senate does not invest in an independent translator (or at least, it hasn't in the impeachment proceedings I have participated in) and will mostly rely on the captions prepared by the party that presents the audio-visual evidence. The Senate also seemed to be quite lenient on the rules of electronic evidence, to the extent that videos were edited and mashed up but did not invite any scrutiny, despite the same being pointed out.
Preparing a competent impeachment motion that will pass at the County Assembly, let alone the Senate involves rigorous and vast amounts of work that cannot be undertaken by a single lawyer. Instruct a couple of law firms to ensure maximum quality of work. This is your seventh lesson. The third impeachment proceedings against the governor of Meru for instance, spanned material over five thousand pages. The lawyers must divide labour in a manner that does not overwhelm any of them. Other than instructing two or three lawyers/law firms, there is not much that you can do with relation to the division of labour amongst the advocates, as that is a matter for the advocates to agree on, led by their lead counsel.
The eighth and perhaps most important lesson is that impeachment is not purely a legal process. It is a tool of political accountability too. This was held in the Sonko and Wambora cases and has been apparent in the impeachment proceedings against the governor of Meru. To this end, expect political machinations to play a huge role in the outcome of the impeachment case. As you leave the lawyers to execute the legal parts, you must as members of the county assembly, have a strategy to take care of the political bits of the impeachment.
For one, Governors fight against impeachment collectively as it is both an individual and collective existential threat. By now, you must have seen allegations in the media, that the council of governors played a hand in saving Governor Kawira Mwangaza in the recently concluded impeachment proceedings against her. The specific allegation being that the council of governors contributed money, which was used to ‘lobby’ for the votes of the senators to save the embattled governor.
This kind of intervention by the Governors is quite easy bearing in mind their financial muscle. A million shillings, ten million shillings is pocket change to a Governor handling budgets amounting to billions of shillings and engaging in business with County Governments through proxies. Before you kick-start the motion, ensure you have a strategy to counter the expected intense lobbying that the governors may undertake to save their careers. Expect a tough fight.
The final lesson is to have a clearly set out plan B in the event the result of the impeachment proceedings does not go your way. If the governor is saved by the Senate and returned to office, what are the implications for the political careers of the MCAs who supported the impeachment motion? Although the law allows you to re-introduce an impeachment motion, even based on the same facts, after three months you need to interrogate your aims and goals and decide whether the same will be met regardless of the result of the impeachment.
I conclude as thus; if you do decide, as members of a County Assembly, to impeach your Governor, you must prepare for a tough and gruelling fight whose outcome is unknown and unpredicatble.
You must be keen on the political aspects as well as the legal aspects of the impeachment. If money is used to lobby or influence the votes of the senators, you must strategize to avoid being outbid by your adversary. It is important to emphasize on a plan B in the event the result of the impeachment process is not in your favour.
Article by Eric Muriuki, of MKA Law LLP, one of the Lawyers representing Meru County Assembly in the impeachment proceedings against Meru Governor Kawira Mwangaza.