Circumstances where a court can interfere with impeachment proceedings: The Wambora Case

Martin Nyaga Wambora & 4 others v Speaker of the Senate & 5 others [2014] eKLR

Petition No. 3 of 2014

Brief Facts:

This was a consolidated petition that sought to challenge the constitutionality of the process leading to the removal of the 1^st petitioner as the Governor of Embu County. This was occasioned by a botched tender regarding the refurbishment of Embu County Stadium and supply of maize seeds, whereby the County Assembly of Embu following the recommendations made by their Joint Committees of Infrastructure, Youth and Sports and that of Agriculture, Livestock, Fisheries and Co-operations and proceeded to impeach the 1^st petitioner and his deputy. This was due to the fact that the Joint Committees had recommended the removal from office of the 4^th Petitioner (County Secretary Embu County) who proceeded to court and got conservatory orders stopping the process hence the 1^st petitioner was unable to act on these recommendations to remove her from office. The County Assembly nevertheless went ahead to institute impeachment proceedings against the 1^stpetitioner and his deputy who being aggrieved by that action sought court orders to stop the process. The matter in contention included contempt of court proceedings against the 1^st Respondent (Speaker of the Senate) for ignoring several court orders directed at them stopping their summoning of the Petitioner for impeachment proceedings and the subsequent gazettement of the same without providing the 1^st petitioner with grounds upon which the impeachment was based on or a fair hearing.

Issues:

1. Whether the court had jurisdiction to hear a matter regarding the impeachment of a County Governor
2. Whether the making of the recommendations by the Joint Committees of Embu County Assembly without having formally heard the 1^st Petitioner amounted to a violation of the rules of natural Justice
3. Whether the validity or otherwise of a Governor’s removal from office by way of impeachment was a dispute amenable to Judicial review or whether it is a political question
4. Whether the National Assembly Powers and Privileges Act ousted the High Court’s jurisdiction with regard to actions of the Speaker of the Senate due to parliamentary immunity
5. Whether a Deputy Governor could assume office where the Governor was removed from office without due regard to procedure
6. Whether the proceedings leading to the resolution and  removal of the 1st Petitioner from office was done in accordance with the law

Constitutional law-devolution-County Governments-impeachment of a Governor-process for the removal of a County Governor from office-circumstances under which a Governor could be removed from office-whether gross violation must be proved for a Governor to be removed from office-Constitution of Kenya, 2010, article 181; County Governments Act, 2012 section 30, 33, 34

Jurisdiction-jurisdiction of the High Court-whether High Court has jurisdiction to hear a matter regarding the impeachment of a County Governor-the quasi-judicial nature of County Assemblies during  impeachment proceedings-Constitution of Kenya, 2010, article 165(6)

Civil Practice and Procedure-contempt of court-when a court can declare a party to be in contempt of court-effect of contempt proceedings on officials of the Senate-effect of decisions made in violation of court orders- Civil Procedure Rules, Order 40 rules 2, 3

Held:

1. Article 165(6) of the Constitution of Kenya, 2010 gave the High Court supervisory jurisdiction over all subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Since the issue in contention was the process followed by the Joint Committees in arriving at their decision, then the court in the exercise of its judicial review jurisdiction had the mandate to investigate whether the process used complied with the law. This was due to the fact that the joint committees being established under the County Governments Act and in the discharge of their duties were acting as quasi-judicial bodies and as such their decisions were subject to judicial review.
2.  The deliberations of the Joint committees only amounted to preliminary inquiries and it was not necessary to formally hear the applicant before making their recommendations. These recommendations did not amount to a decision that would affect the applicant’s rights at this stage. Good administration required that a party being investigated regarding suspected irregularities in the execution of his/her official duties, step aside to pave way for investigation to avoid a possibility of interference with the investigations.
3. Though the right to a hearing encompassed the right to be given sufficient notice of the allegations made and sufficient time to respond, there was no universal principle regarding what amounted to sufficient notice. Whether a notice given was sufficient or not depended on the circumstances of each case and the nature of the allegations to be answered. The notice given to the 4^th Petitioner was not short as to be unreasonable since she was not being summoned to defend herself against any allegations of wrongdoing and moreover the matter she was being summoned for was not new to her since she had communicated before about it with the respondents. The 4th Petitioner should have honored the summons, attended the committees and subsequently asked for extension of time to provide additional information should it have been needed.
4. The order of certiorari sought by the 4^th Petitioner could not apply in the instant case since the Embu County Assembly only made recommendations which did not amount to a decision capable of being quashed by such order. The rule contained in Order 53 Rule 7 of the Civil Procedure Rules was put in place to ensure that an actual decision actually existed capable of being removed to the High Court for quashing. The 4^th Petitioner having failed to avail the resolution containing the alleged decision by the Embu County Assembly, the court was unable to find that such a decision actually existed thus the remedy of certiorari could not be made available to the 1^st Petitioner.
5. The order of prohibition is normally issued to prevent a tribunal or body from continuing with proceedings conducted in excess of jurisdiction or contrary to the laws of the land or to prohibit the making of contemplated unlawful decisions. The court could not issue an order of prohibition whose effect would be to shield the applicant from investigations by the Ethics and Anti-Corruption Commission, which was an independent commission created under the Ethics and Anti- Corruption Commission Act, No 22 of 2011 and whose sole mandate was to investigate allegations of corruption. The court could not prohibit a statutory body from executing its lawful mandate.
6. The Court was the only arm of government vested with the power to interpret the Constitution and to intervene where violation of the Constitution by other arms of government and state organs was alleged. The amended petition contained allegations of the Petitioners’ rights and freedoms with regard to his removal from office thus the doctrine of separation of powers did not inhibit the court’s jurisdiction to handle the matter.
7. In Kenya the constitutional power to impeach a Governor was donated to the County Assembly and the Senate. The 1^st petitioner had asked the court to determine whether his impeachment was done in accordance with the Constitution of Kenya and the County Government Act which stipulated the procedure for impeaching a Governor. Given that the 1^st petitioner alleged a violation of his fundamental rights and freedoms, the petition ceased to be a political question but one that was justiciable.
8. Section 29 of the National Assembly (Powers and Privileges) Act in its wording ousted the jurisdiction of the Court with regard to the actions of the Speaker and officers of the National Assembly. However, even though Senate had the powers to impeach a Governor, it had to do so within the limits prescribed by the Constitution. The court would step in and lift the veil of parliamentary privilege if it was of the view that the Senate had violated the Constitution. The Speaker and other like officers could only enjoy immunity from court action if their decisions were made in accordance with the Constitution, hence section 12 and 29 of the National Assembly (Powers and Privileges) Act did not oust the court’s jurisdiction to hear the petition at hand.
9. With regard to whether the amended petition was drafted accordingly, it was trite law that for a petition to be said to be competent it had to comply with the provisions of Rule 10 of the Mutunga Rules. This rule provided the specific contents that a petition of such nature had to contain before it could be allowed to pass muster. The petitioners in this case had stated the facts in support of the petition, the particulars of the alleged violation and also the reliefs sought. The amended petition had met the threshold required under Rule 10 of the Mutunga Rules.
10.  The law regarding the removal of a Governor from office was contained in article 181 of the Constitution of Kenya, 2010 and the bodies mandated to do so were the County Assembly and the Senate. The Constitution provided that for such a process to commence, gross violation by party had to be proved. The removal of a Governor being a very weighty matter, it had to be done in strict accordance with the law since it was a limitation of the right of a Governor to hold political office as well as the right of the electorate to elect a person of their choice to a political office.
11. Knowledge supersedes personal service. If a party was able to prove that there was knowledge of court orders, then that was sufficient to form a basis for finding of contempt of court orders. The 5^th and 6^th Respondents had knowledge of the court orders preventing them from going on with the motion proposing the removal of the 1^st petitioner from office without giving him an opportunity to be heard.
12. It was the responsibility of the Speaker of the County Assembly to preside over the business of the County Assembly. It was also his duty to ensure that the court order was obeyed. In allowing the motion proposing the removal of the 1^st petitioner from office to be debated and passed, the 5^th respondent acted in disobedience of court orders and thus was guilty of contempt of court.
13. Anything done in disobedience of court orders was null and void ab initio and thus the resolution passed by the 6^th respondent for the removal of the 1^st petitioner from office which was forwarded to the Speaker of the Senate was invalid.
14. Court orders once issued must be obeyed by those it is directed to unless they are discharged or set aside. The orders bind everyone alike without discrimination. The Senate acted in violation of court orders when it chose not to obey them but the court could not cite the Speaker and Clerk of Senate for contempt proceedings since no such application had been brought before court.
15. The Deputy County Governor could not assume office under article 182(2) of the Constitution of Kenya, 2010 since the proceedings removing the 1^st petitioner from office were in violation of court orders and a party could not be allowed to benefit from an illegality. Article 182(2) of the Constitution of Kenya, 2010 could only apply where a Governor had been removed from office legally. An act done in disobedience of a court order was illegal and invalid and could not affect any change in the rights and liabilities of others.
16. The right to a hearing must be accorded to a Governor at any time that the motion proposing removal from office is being debated before it is approved or rejected. The County Assembly of Embu had already made provisions as to the right to a hearing in its Standing Orders so in ignoring those same provisions and denying the 1^st petitioner a right to be heard, they violate his right to fair administrative action as enshrined in article 47 of the Constitution of Kenya, 2010. The right to be heard should apply whenever section 33(1) of the County Governments Act is invoked by any County Assembly member.
17. The 1^st, 2^nd, 5^th and 6^th Respondents acted in violation of Court orders previously given which made the removal of the 1^st petitioner from office by the Senate a nullity in law. Also, the 1^stpetitioner’s right to fair administrative action was violated by the 6^th Respondent.

Judicial Review application by 4^th Petitioner dismissed with no order as to costs.

Proceedings for impeachment of the Governor quasi-judicial in nature thus subject to the jurisdiction of the High Court, order of certiorari granted quashing decision to remove Governor from office and quashing the Gazette Notice on his impeachment and each party to bear its own costs.