BY SAM ALFAN .
Busia Senator Okiyah Omtatah wants a law used to impeach governors, speakers and their deputies declared unconstitutional.
Filed under certificate of urgency, Omtatah wants the court to issue a temporary order suspending sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Government Act, pending the determination of the petition.
He further wants the court to send the file to the Chief Justice Martha Koome, for appointment of a bench to hear the case, arguing that it raises weighty questions of law.
“The petition raises substantial questions of law and forthwith refer the case to Her Ladyship the Chief Justice for the empanelment of a bench of an uneven number of judges, being not less than three, pursuant to Article 165(4) of the Constitution of Kenya, 2010,” says Omtatah.
He says the sections are void because they do not provide for a fair trial before an independent tribunal, contrary to the express provisions of Articles 25(c), 50(1) & (2)(d), and 236 of the Constitution.
It is his argument that the failure to provide for a fair trial before an independent tribunal is tantamount to amending the Constitution without reference to Articles 255, 256 and 257.
He added that this has created the untenable situation whereby county assemblies across the country have literally taken their governors and speakers hostage by hanging the threat of impeachment above their heads like the sword of Damocles.
Omtatah further seeks declaration be issued that it is unconstitutional for a county assembly to impeach (accuse) an official, put him/her on trial, convict the individual, and impose the penalty of disqualification.
In his constitutional petition, he further seeks declaration be and is hereby issued that officials impeached by Kenya’s unicameral county assemblies must be put on trial before an independent and impartial tribunal or body.
“A declaration be and is hereby issued that sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 are unconstitutional and, therefore, invalid, null and void,” says Omtatah.
He further seeks declaration that by enacting sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012 the National Assembly and the Senate violated the Constitution of Kenya, 2010.
“A declaration be and is hereby issued that the role of the Senate under Article 96 of the Constitution does not include being the trial chamber for county officials impeached by county assemblies,” seeks the senator.
He further wants court to declare that the use of the Senate as the trial chamber for impeachments that are done by county assemblies is unconstitutional and, therefore, invalid, null and void.
He urges High Court to declare that, under the Constitution of Kenya, 2010, the Senate can only be used as a trial chamber for an impeached President or Deputy President.
In his petition, he seeks declaration that legislation for the removal of a county governor or speaker, or their deputies, must provide for adjudication before an impartial and independent tribunal of body under the judiciary.
He wants the court to order be and is hereby issued quashing sections 11(1)(c), (8), & 11A(1)(b), and 33(2-9A) of the County Governments Act, No. 17 of 2012.
