Why Babu Owino's ouster motion against Health CS Susan Nakhumicha is an exercise in futility
Embakasi East MP Babu Owino (right) and Health CS Susan Nakhumicha.
What you need to know:
- Babu cites Ms Nakhumicha for gross violation of the Constitution and incompetence in the way the CS is handling the health sector.
- The ongoing strike by health workers - doctors, clinical officers and laboratory technicians - has paralysed services in public hospitals.
- Former Speaker Justin Muturi - who served in the 11th Parliament - made it impossible to impeach or remove state officials.
Embakasi East MP Babu Owino's motion for the removal from office of Health Cabinet Secretary Susan Nakhumicha could be dead on arrival if the precedent set by former National Assembly Speaker Justin Muturi is anything to go by.
In his notice of motion filed with the Clerk of the National Assembly Samuel Njoroge on April 4, 2024, Mr Owino cites Ms Nakhumicha for gross violation of the Constitution and incompetence in the way the CS has handled the paralysis in the health sector.
This is due to the ongoing strike by health workers - doctors, clinical officers and laboratory technicians - which has paralysed services in public hospitals, possibly resulting in the loss of lives.
With the nurses' strike also imminent, Ms Nakhumicha, as CS for Health, is definitely on the ropes.
Specifically, the Embakasi East MP, who is in his second term, accuses the Health CS of violating Articles 26 (1) and 43 (1) (a) of the Constitution.
Article 26 (1) of the Constitution states that everyone has the right to life, while Article 43 (1) (a) states that everyone has the right to the highest attainable standard of health, which includes the right to health services, including reproductive health services.
Mr Owino may be justified in seeking the removal of CS Nakhumicha under Article 152(6).
But what he may not know is that the immediate former Speaker of the House, Justin Muturi - who served in the 11th Parliament - made it impossible to impeach or remove state officials - the President, Deputy President, Cabinet Secretaries and a member of a Constitutional Commission.
Embakasi East MP Babu Owino.
As with the precedents set by the courts, subsequent Speakers of the House can choose to abide by their predecessors' rulings or simply overturn them and set their own standards.
This is what awaits Speaker Moses Wetang'ula in Mr Owino's attempt. Under the Constitution, the grounds for impeachment or removal of a public official are similar.
They include gross violation of the Constitution or other laws, commission of crimes under national or international law, and gross misconduct.
Apart from the difference in the threshold required to support the motion, the constitutional provisions for the removal of state officials are similar in wording.
In a communication to the House on 22 October 2015, then Speaker Muturi revealed that in most jurisdictions where the legislature has been given the power of removal, the removal process is a complex and cumbersome mechanism.
“The thresholds are not precisely defined in the constitution itself and, therefore, it is the responsibility of the House to determine grounds and particulars based on their respective constitutions,” said Mr Muturi.
He noted that “in most cases, the constitutional framework is skeletal, providing minimum guidance as to the nature of the proceedings and leaving the void to be filled, to a great extent, by the House rules, procedures and precedents.”
Therefore, to address this, the Speaker directed that all special motions of impeachment and removal from office of a state officer should comply with thresholds established by the courts of law as to what constitutes gross violation of the Constitution or gross misconduct under the Constitution.
To ensure this is complied with, Mr Muturi noted special motions should be accompanied by the “necessary” evidence including annexures and sworn testimonies in respect of the allegation for Speaker’s determination.
Upon determination that the grounds are merited based on the evidence adduced, the petitioner is then allowed to go ahead and collect signatures that must be backed by at least one-quarter of the 349 MPs in the House, which is 88 members.
The sponsors of such motions are also required to get drafting assistance from the office of the Clerk before embarking on the collection of signatures.
Article 145 of the constitution provides for the removal of the President by impeachment and Article 150 (2) for his deputy.
Article 152 (6) of the constitution provides for the removal of a Cabinet Secretary and Article 251 (1) for a member of a constitutional commission.
Cabinet Secretary for Health Susan Nakhumicha briefs journalists at Afya House in Nairobi on March 18, 2024.
Speaker Muturi set the tough rules ostensibly to “protect state officers from frivolous impeachment or removal from office motions.”
Before Speaker Muturi came up with the tough rules, only one motion for removal of a CS had progressed on the floor of the House.
Under Article 75 (3) of the constitution, a person who has been dismissed or otherwise removed from office for misconduct in a state office is disqualified from holding any other state office.
Article 152 (6) of the constitution states that a member of the National Assembly, supported by at least one-quarter of the 349 of the members of the Assembly, which is 88 MPs, may propose a motion requiring the President to dismiss a Cabinet Secretary (CS).
This shall be based on the grounds provided in the constitution.
The constitution goes on to state that if the motion is supported by signatures of at least a third of the members of the National Assembly, which is 117 MPs, the House shall appoint a select committee comprising eleven of its members to investigate the matter.
Standing Orders provide that an MP can withdraw a signature given in support of a special motion before it is listed in the Order Paper.
However, this creates unpredictability and uncertainty on the impeachment processes and may also create room for abuse of the impeachment processes where an MP may be unduly influenced or coerced to withdraw signatures that were earlier appended on a list.
But for purposes of certainty and good order in the conduct of the business, the House amended its Standing Orders requiring that “no withdrawal of signatures will in future be permitted where the MP has sought assistance from the Office of the Clerk, prior to embarking on the collection of signatures.
Article 152 (7) of the constitution vests the impeachment authority of a Cabinet Secretary of the National Assembly on a select committee which is mandated to investigate and report to the House within 10 days whether it finds the allegations substantiated.
The CS has the right to appear and be represented before the select committee during its investigations.
In the event the select committee reports that it finds the allegations unsubstantiated, no further proceedings shall be taken.
If substantiated, the National Assembly shall afford the Cabinet Secretary an opportunity to be heard and vote whether to approve the resolution requiring the Cabinet Secretary to be dismissed.
This implies that a duty is imposed on the special committees to examine and interrogate the facts as stated in the special motion amounting to alleged gross violation of the constitution or gross misconduct.
“To this extent, the findings of the Special Committees must be guided by the interpretation precedent set by the courts of law.”
Once a resolution requiring the President to dismiss a Cabinet Secretary is supported by a majority of the members of the National Assembly, the Speaker shall promptly deliver the resolution to the President and the President shall dismiss the Cabinet Secretary.
On June 13, 2014, the Igembe South MP Mithika Linturi, the current Agriculture Cabinet Secretary, disappeared after his motion that sought to have then Devolution Cabinet Secretary Ms Anne Waiguru fired from cabinet, was approved by Mr Muturi and communicated to the members at the plenary.
When the Speaker called out Mr Linturi’s name to move the motion, he was nowhere, meaning that the motion could not proceed and therefore, died on the spot.
At the time Mr Muturi issued the tough guidelines, then Nandi Hills MP Alfred Keter had filed a motion for removal from office of Ms Waiguru over what he called gross violation of the constitution and abuse of office charges.
In 2020, Nyali MP Mohamed Ali wanted then Transport Cabinet Secretary James Macharia fired over similar grounds but his motion did meet the threshold set by the Speaker’s ruling.
According to the former Speaker’s ruling, the question of determining what constitutes gross violation of the Constitution or gross misconduct “is one that clings and hangs on the impeachable authority of the House and is excisable in two instances.”
This includes at the point of the approval of the motion for impeachment or dismissal and at the point of investigations conducted by the relevant select committee.
At the first instance, the House rules require the Speaker to take into account constitutional and evidential requirements while determining the admissibility “or otherwise of a motion.”
