OMTATAH: Removal of governors must be well-founded in law.

Impeachment is a unique process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct and/or inability to perform functions efficiently.

Depending on the laws of a country, it may be a purely political process where the accused is not held to account before an impartial and independent body, or one involving both politicians and an independent tribunal.

The acquittal of the Meru County Governor on December 30, from her impeachment by the Meru County Assembly was only possible because either those who control executive power in the republic did not meddle in the affairs of the Senate or they intervened to get that particular outcome.

And it was unsettling to see some Senators openly take sides, including by celebrating openly with the acquitted governor, yet they were the adjudicators in the dispute.

Further, going by how some previous impeachments were shambolically handled by a remote-controlled Senate, such as those of governors Mike Mbuvi Sonko, Ferdinand Waititu Babayao, and Anne Mumbi Waiguru, the House can just be a conduit for punishing or protecting accused governors according to the will of those in power.

The fact that a county governor can be removed from or retained in an office on the whims of those who control power is a lacuna in the law that must be cured to protect devolution.

Articles 181(2) and 200(1) and (2)(c) of the Constitution require Parliament to enact legislation providing for the procedure of removal of a county governor/deputy governor on any of the grounds specified in Article 181(1)(a-c).

Whereas, as observed by the Supreme Court in the case of Sonko - v - County Assembly of Nairobi City and 10 Others (Petition 11 (E008) of 2022 (2022) KESC 76 (KLR), the outcome of impeachment or removal from office as regards the President and a county governor, respectively, are the same, the constitutional and statutory bases for doing so are distinctly different.

Removal from office of a county governor on any of the grounds specified under Article 181(1) (a-c) of the Constitution is a grave matter as it involves overturning the sovereign will of the people as expressed in a democratic election.

Even more profoundly, the removal attracts an indefinite prohibition from ever holding a State and/or public office.

In particular, it extinguishes for all time the affected person's right under Article 38(3)(c) to vie for and, where elected, to hold public office.

The constitutional bar that must be cleared for the removal from office of a county governor is high.

The Constitution requires that the removal must be well-founded in law.

Removal or threats of removal from office must not be used as the sword of Damocles, hanging over the heads of county governors as a threat to induce or compel them to act against their constitutional mandate.

Due to the severity of the issue, the process of removing a county governor must be pretty stringent and clearly laid out in a constitutionally sound law, which strictly conforms to the Bill of Rights and other provisions of Kenya's very prescriptive Constitution.

The threshold for the removal of a county governor or deputy governor on any of the grounds specified in Article 181(1)(a-c) must be objectively established by an impartial and independent body.

It is not simply a matter of numbers in the County Assembly.

It is not a vote of no confidence that has no specific grounds anchored in law, it is not a political decision involving no disgrace, and it needs a simple majority to vote in favour, leading to a forced resignation.

And Parliament cannot purport to override provisions of the Constitution under the guise of legislating the procedure for removal under Articles 181(2) and 200(1) and (2)(c) of the Constitution.

Unlike the impeachment of the President under Article 145 of the Constitution, which is insulated from any challenge, the process of removal from office of a county governor must comply with all provisions of the Constitution.

If the framers of the Constitution had intended the two processes to be exactly the same in every instance, nothing could have been easier than simply stating so as they did in Article 150(2) for the Deputy President, thus: '(2) The provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.'

Article 1(1) of the Constitution declares that all sovereign power belongs to the people of Kenya and shall only be exercised in accordance with the Constitution.

When, as...