As the two-day impeachment hearing against Kericho Governor Erick Mutai kicks off at the Senate today, the question of threshold is likely to decide the fate of the first-term county boss.
Issues have been raised as to whether the requisite number of members of the county assembly was met in the outster of the United Democratic Alliance (UDA) party governor.
Senate Speaker Amason Kingi last week set Monday and Tuesday for the impeachment hearing through plenary, after a failed attempt to form a special committee of 11 senators to hear the charges against Dr Mutai.
He faces charges of gross violation of the Constitution, 2010 and other laws, abuse of office, flouting the Leadership and Integrity Act, violation of the Public Finance Management Act, 2012, misappropriation of public funds, illegal drawing of county revenue, and engaging in indecent sexual acts.
On October 2, 2024, a total of 31 out of the 47 MCAs voted in favour of the impeachment, while 16 opposed to Dr Mutai’s removal boycotted the session.
The fight is over whether the proposer of the motion, Sigowet Member of the County Assembly Kiprotich Rogony, fell short of requisite two-thirds-majority threshold by one member.
“Seemingly, the idea to have the 16 MCAs boycott the session was aimed at denying the mover of the impeachment motion the numbers to meet the threshold for removal of the governor from office,” said Sigey Bett, a Nairobi-based advocate of the High Court.
“Despite getting the 16 MCA to back him, Dr Mutai’s move created a grey area in terms of absolute numbers required by his opponents to edge him out of office in what is expected to be a big issue in the impeachment hearing at the Senate.”
It will be both a legal and a political issue for Dr Mutai’s lead counsels – Katwa Kigen and Manase Tunen – in a do-or-die battle at the Senate.
“The onus is on the governor and his legal team to convince the Senate on whether the two thirds majority is 31 or 32 MCAs at the county assembly. It is where the fight hinges and may save or deal Dr Mutai the fatal blow in the impeachment hearing,” Mr Bett said.
Speaker of Kericho County Assembly Patrick Mutai raised the issue while making a ruling on the impeachment of the governor two weeks ago, stating the threshold was met.
“As per the record in the House, 31 MCAs who are present have voted in support of the motion. The motion is passed and governor Mutai stands impeached by the County Assembly of Kericho,” Dr Mutai (Speaker) ruled.
“The two-thirds majority as per the tradition of the House has always been counted at 31 and the one third is 16. As such the threshold has been met.”
But the MCAs allied to governor Mutai hold the position that the threshold for impeaching the governor is 32 MCAs and not 31 as claimed by the speaker.
Kapsoit Ward Rep Paul Chirchir and his Chaik counterpart Mathew Korir led the MCAs in arguing that the speaker, because of his alleged political bias on the matter, allowed the motion to pass despite lack of legal and constitutional threshold.
“It is clear that out of the 47 MCAs, the mover of the motion should have garnered the support of 32 MCAs. As it stands, they missed the threshold by one member,” The MCAs backing Dr Mutai in the impeachment process said.
Mr Chirchir appealed to the senators to objectively handle the impeachment process and avoid political mob lynching of the governor.
“We are looking forward to a Senate that will soberly and objectively look at the trumped-up charges against Governor Mutai, the unmet threshold for impeachment and efforts to sensationalise the process for political rather than legal reasons,” Mr Chirchir said.
Dr Mutai is alleged to have engaged in indecent and unnatural sexual behavior, whose proof the public is waiting to see how it unfolds in the senate, as it was not provided at the county assembly.
The county boss is accused of forcing a woman to have unprotected sex with him, and the victim has allegedly provided evidence to the assembly to table before the Senate.
“The conduct of the governor has been scandalous and embarrassing to the high office of the county boss, an office held in public trust and whose authority ought to be exercised in a manner consistent with the purpose and objects of the Constitution,” Mr Rogony states in the impeachment documents.
Dr Mutai faces claims of persistent use of abusive and unbecoming language in public, persistently intimidating, molesting and harassing county officers.
Before the ouster, Dr Mutai’s lawyers secured two separate High Court orders barring Mr Rogony from tabling the motion and the county assembly from hearing or entertaining it, and another stopping the assembly Speaker Patrick Mutai from transmitting the resolutions to the Senate.
But the two orders were ignored with the impeachment process having been allowed to proceed at the county assembly and the resolutions transmitted to the Senate.
Senators will also be required to assess the legality of the ouster process in light of the court orders.
