An inquiry into the limits of judicial intervention in the impeachment

Abstract

Article 181 (2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a country governor. This has been done through the County Government Act. Section 33, recognises the County Assembly and the Senate as the bodies responsible for this process. However, the Constitution fails to address at what point courts of law can intervene in this process in an instance where a fundamental right or freedom has been violated. While this is important in a constitutional democracy, courts’ ability to intervene in the impeachment process of governors at any point may unduly interfere with governors’ delivery of their constitutional mandate. Such an unregulated intervention creates confusion between the role of courts of law in the impeachment process, on the one hand; and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. The Supreme Court has failed to provide a solution to this problem when presented with it in Justus Kariuki Mate & another v Martin Nyaga Wambora & another. This study therefore seeks to address this confusion through analysis of judicial decisions and then suggest a way forward