Party hopping by governors is not an impeachable offence.

All elected politicians were members of Kanu before 1992 (except for a short period after Independence). From 1982, section 2A of the old Constitution made this the legal position. Once section 2A was removed in 1992, people could join other parties and stand for elections. Multi-party had returned.

But not “no party”. You could not say “A plague on all your houses” and stand for election just as yourself – an independent candidate (IC).

The drafters of the current Constitution, on the basis of public opinion, changed that and provided that “Any person is eligible to stand as an independent candidate for election” (Article 85).

They realised that there was a risk that people would stand as ICs not because of any real conviction that all the parties were wrong, but because they had failed to get adopted as a candidate by any party. And if elected they would be quite likely then to join a party.

They tried to minimise this risk by saying that to be an IC a person must not have been a party member for the last three months.

And, secondly, they said that (1) The office of a member of Parliament becomes vacant…if, having been elected to Parliament…as an independent candidate, the member joins a political party” (Article 103).

This was also relevant to the drafters’ ambition to encourage political parties that had some ideology, which members would believe in, parties that had some stability and a role in Kenya’s political life, not just as fan clubs for individuals and vehicles to get on the political gravy train, regardless of what the parties stood for, by people who stood for nothing but themselves.

In this they have been, of course spectacularly unsuccessful.

Another justification for the Article 103 rule is this. If you have appealed to the voters on the basis that you either do not belong to any party – or you do support a particular party – and then you join a party (or another party) the basis for your membership of the elected body has been severely undermined and you should no longer be entitled to membership.

This rule does, obviously, interfere with people’s freedoms of association (Article 36) and to make political choices (Article 38) – but it can’t be challenged because it is in the Constitution.

However, the drafters did not apply the same rule to the president and deputy, or governors and their deputies. It is unlikely that the first would party-hop – their party is them, after all. The rule does apply to members of county assemblies (Article 194).

What actually happens to ‘party-hopping’ MPs?

Under the old Constitution nothing happened. Parties whose members had deserted them did not seem to want to get them kicked out of Parliament – reducing their theoretical numbers. And, of course, there were no independents!

Now the Constitution says they lose their seat. But how? There is no supernatural constitutional hand that reaches from the sky and plucks the MP out of his/her seat! Now a political party from which a person has resigned or been dismissed must tell the Registrar of Political Parties.

But, eventually, if it is a sitting member of Parliament someone must tell the relevant Speaker who would ultimately declare a vacancy. But MPs have a remarkable ability to change parties without doing so formally. Even this should count as joining the other party according to the Political Parties Act which talks of “promoting the ideology, interests or policies of another political party”.

But if Speakers will not act unless they are convincingly informed that someone has moved party – no-one informs them – when will Article 103(1)(e) ever bite?

Is it wrong for an independent governor to join a party?

To deprive a person of an office to which they have been elected is a serious matter – and it is unlikely that any court would accept it unless it was in the Constitution. Indeed there is a principle of interpretation of statutes including constitutions.

This is: if a law says something specific in a particular situation, and not in another situation to which it could have been applied, we must assume that the makers of the law made a deliberate decision not to apply it in the second context.

In my view this point would deal with an argument I can imagine being made – you might want to skip this paragraph! The argument is that a governor or deputy (or a president or deputy) must be when elected, and remain while in office, entitled to be elected to a county assembly or parliament (Article 180(2)). A possible situation is that if a person is convicted of an offence while in office and is sentenced to at least six months in prison they no longer satisfy this test. If it was election time they could not have stood.

But I do not believe that party hopping means you no longer satisfy the requirements for standing for election. To change parties or join a party does not disqualify you from standing at all.

What can the MCAs do?

The Meru MCAs seem still very unhappy with the governor – despite having failed twice to unseat her by impeachment. Might they try again now that she has joined UDA? There is no limit on the number of times an assembly – county or national – can impeach someone. A county assembly cannot go to the Senate with the same charges within three months. Anyway party-hopping would be a fresh ‘charge’.

But what charge? The grounds for impeachment are: gross violation of the Constitution or any other law; serious reasons for believing that the governor has committed a crime; abuse of office or gross misconduct; or physical or mental incapacity. Joining a party does not seem to fit into any of these. The only possibility would be the first and we have already seen that it could have been made a breach of the Constitution by the drafters and was not.

How about numbers? The 13 UDA members in the assembly (that was the initial count) might feel inhibited, less by party loyalty but by fear of annoying the President. In order to be complete and go to the Senate an impeachment motion must be supported by two-thirds of the MCAs.

There are 69 MCAs in the Meru Assembly. So 13 UDA members would not be enough to block a motion. But maybe other Meru MCAs have effectively shifted to Kenya Kwanza.

Can the people do anything?

The people can of course not re-elect her in 2027. One might ask: if the justification for disapproving of an independent hopping into a party is that the people are betrayed because they voted for one sort of person and got another, should the people not be able to kick her out?

Removing a person from elected office by voters is called “recall”. It is recognised in the Constitution only for MPs and senators, and in the County Governments Act only for MCAs. Not for governors. I think it is very likely that if Parliament tried to introduce recall for governors it would be held unconstitutional. It is likely (not guaranteed of course) that a court would hold that only the Constitution could deny someone the office they were elected to.

A small digression: possibly the County Government Act section providing for recall of MCAs is unconstitutional for this reason – but at least this mirrors the Constitution on recall of MPs. On the other hand, Article 200 which gives Parliament the power to pass law about the running of country government speaks of “giving effect to” Chapter Eleven on Devolution. But, as I have said, Chapter Eleven does not mention recall of MCAs.

To return to the governor: in short I believe that she cannot be removed either by the electorate or by the assembly unless she does something new that is an impeachable offence within Article 181. To repeat: party hopping by governors is not.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-04-14-jill-ghai-can-state-officers-elected-as-independents-join-parties/

Image: KIETH MUSEKE