President Kenyatta has signed a bill that allows incompetent and troublesome MCAs to be recalled.
The County Governments Amendment Bill 2017 was sponsored by Elgeyo-Marakwet Senator Kipchumba Murkomen and passed by the Senate on April 21 and the National Assembly on June 30. The bill was assented to by President Kenyatta on Thursday.
“My intention in coming up with the law is to ensure that county assemblies are bastions of respect and dignity in undertaking their constitutional and legal mandate to represent people, legislate and ensure the limited resources are used prudently by those responsible,” he said.
Recalling of MCAs is now simplified with reasons such as violation of the Constitution or any other law, incompetence, gross misconduct or if convicted of an offence punishable by imprisonment for at least six months.
Fighting in the Chamber
Fighting within precincts of the county assembly or any other place will now constitute enough grounds for removal.
A petition filed in writing with the Independent Electoral and Boundaries Commission (IEBC) will initiate the recall. The petitioner requires 30 per cent of signatures of the registered voters in the Ward to file the petition.
“The petition must be signed by a petitioner who is a voter in the ward in respect of which the recall is sought,” reads part of the law.
The submission of the petition to the IEBC must be within 30 days from the date of its filing. The IEBC shall verify the signatures within 30 days from the date the petition is filed.
The commission, if satisfied that the requirements are met, it shall, within 14 days of verification, issue a notice to recall the rep to the Speaker of the county assembly.
The IEBC shall conduct a recall election in the affected ward within 90 days of publication of the question – Yes or No. A simple majority shall decide the recall vote.
If a majority vote in support of the recall, IEBC shall conduct a by-election in the ward within 90 days.
Delinquency amongst ward reps has been rampant across the 47 county assemblies, where they turn debating chambers into an arena of fistfights and flying chairs whenever they disagree.
As such, proper checks on the county government, one of their core mandates, has been wanting as governors easily get away with mismanagement of public resources.
For instance, last year, Nairobi County Assembly members used force, which is against the law and Standing Orders, to eject Speaker Beatrice Elachi from office.
Unruly reps have in the past also barred county assembly speakers from accessing their offices despite the victims having court orders.
To deal with such vices and ensure that the dignity of the assembly is restored, those found culpable now risk losing their seats as they would be easily cited for gross misconduct and violation of the Constitution and the law.
The law further protects the county Speakers from frivolous impeachment proceedings by reps and also creates a substantive position of deputy Speaker.
Previously, MCAs have hounded county Speakers out of office through motions filed and voted for within a day of expressing the intention for removal, without giving the accused an opportunity to be heard. Normally, the Speakers approve such motions for debate.
Safeguarding the speaker
In solving the situation, the law protects the Speaker from the frequent attacks by the MCAs. The law stipulates that the Speaker may be removed based on grounds it provides, not what the MCAs think is right.
The grounds for recall include gross violation of the Constitution or any other law, incompetence and gross misconduct.
The others are if the Speaker is convicted of an offence punishable by imprisonment for at least six months or inability to perform the functions of the Office of Speaker due to mental or physical incapacity.
The clerk of the county assembly shall be notified of the intention to move a motion for the removal of the Speaker and must be signed by at least one-third of all the MCAs. The motion must also state the grounds for removal with the relevant facts to avoid turning such legal process into a child’s play.
Previously, the court ruled that the position of the county deputy Speaker illegal as it was not provided for in any law.
This came, especially after Nairobi MCAs kicked their Speaker out and installed an elected colleague as a Deputy Speaker.
Office of Deputy Speaker
The law now establishes the position of the Deputy Speaker to preside over the sitting of the assembly in the absence of the Speaker.
“There shall be a deputy speaker for each county assembly who shall be elected by the county assembly, in accordance with Standing Orders of the respective county assemblies, from among the members of that county assembly,” the law now reads.
In the absence of the Speaker and Deputy Speaker, MCAs shall elect a person among themselves to preside over sittings.
The law also empowers the governors to sack County Executive Committee (CEC) members just like the President does to his Cabinet ministers. This means that unlike in the past, it will now be easier for governors to fire their CEC members without being compelled to provide reasons.
This is to ensure that CEC members do not undermine the authority of governors in service delivery.
Some CEC members have had to go to court to challenge their removal by governors.
The repealed section required a governor to dismiss the CEC member only on grounds of incompetence, abuse of office, gross misconduct and failure without reasonable excuse or written authority of the governor to attend three consecutive meetings of the county executive committee.
Physical or mental incapacity and gross violation of the Constitution or any other law were other grounds for removal of a CEC member, making it difficult for the governor to instill discipline among his CEC members.
This, according to Mr Murkomen, did not make sense as a CEC member is required to work at the pleasure of the governor just like Cabinet secretaries do to the President.
CEC Members Dismissal
“The governor must have the free will to hire and dismiss CEC members. He doesn’t need to justify the sack as long as he believes they are not advancing the course for the delivery of service to the people. At the end of the day, it is the governor who is the executive accounting office of a county. The buck stops with him,” says the Elgeyo Marakwet Senator.
A CEC member can also be dismissed by a county assembly resolution.
But even as he busked in the new dawn awaiting the devolved units, Mr Murkomen said it has not been easy to have the proposed law navigate all the legislative processes, “which are usually turbulent”, to get the presidential assent.
“It has been a long journey for the Bill that was published in the 11th Parliament. But I am happy that it is now law,” Mr Murkomen told the Sunday Nation.
In coming up with the law, Senator Murkomen sought to cure the lacuna in the constitution as well as in the County Government Act of 2012.