EXPLAINER: What constitutes two-thirds threshold required to impeach a governor

Nyamira Governor Amos Nyaribo was on Tuesday impeached by 23 members of the County Assembly.

Some 28 MCAs were present in the Assembly when the vote was taken while 12 kept off.

However, speaker Thadeus Nyabaro allowed six of those present to vote on behalf of their absent colleagues to attain the threshold required to send it to Senate.

What constitutes the two-thirds threshold required to impeach a governor?

The impeachment of a county governor is provided for in the Constitution, the County Governments Act and Standing Orders of both the County Assembly and Senate.

Article 181 of the Constitution states that county governor may be removed from office on any of the following grounds--(a) gross violation of this Constitution or any other law; (b) where there are serious reasons for believing that the county governor has committed a crime under national or international law; (c) abuse of office or gross misconduct; or and (d) physical or mental incapacity to perform the functions of office of county governor.

The law requires a Member of County Assembly to introduce a motion which has the support of one-third of all MCAs.

In the case of Nyamira, the motion ought to have been supported by not less than 12 out of the 35 MCAs. This threshold was met.

Section 33 (2) of the County Government Act provides that if a motion is supported by at least two-thirds of all the members of the county assembly, the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days.

Now the Senate will once again be faced with a question of determining if the Nyamira County Assembly met the threshold required by law.

The first question will be whether it is 23 or 24. Is the threshold counted on members available or the entire house?

If the Senate maintains the precedent it applied in the first Kericho Governor Eric Mutai in October 2024, the Nyamira county boss will have a strong case.

In the Kericho case, the Senate declared that 32 and not 31 of the entire House of 47 were required to reach the two-thirds threshold.

The senate ruled that there couldn’t be 0.3 per cent of a person as MCAs had rounded 31.333 to the nearest figure of 31.

In Nyamira, the same rule will then dictate that the number ought to be 24 and not 23, if the Senators retain the resolution.

Nyamira County Assembly has 35 members.

However, the Assembly currently consists of 32 members as three Wards are holding by-elections tomorrow.

Nyansiongo, Nyamaiya and Ekerenyo voters will go to the polls on Thursday morning.

Governor Nyaribo has vowed to fight in both the Senate and courts, arguing that the MCAs failed to comply with the procedure as per the law.

The second will be whether the Speaker has the power to allow members to vote on behalf of their absent colleagues through delegation.

In Tuesday’s case, 19 MCAs were present in the chambers, with the speaker allowing four of their absent colleagues to vote by proxy.  

Three of those who voted by delegating have since disowned the written instructions.

The Senate will then be required to rule on what between a letter delegating a college to vote on behalf vis-à-vis a sworn affidavit, carries the day.

Nyamira MCAs will have entered the annals of history as the first Assembly to vote through proxy if the Senate upholds the impeachment.

In the past cases, MCAs or even the Senate have allowed absent members to vote virtually.

Standing Order 1(1) of the Nyamira County Assembly states that in all cases where matters are not expressly provided for by these Standing Orders or by other Orders of the County Assembly, any procedural question shall be decided by the Speaker.

The decisions made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the County Assembly of Nyamira, other County Assemblies of the Republic and other jurisdictions to the extent that these are applicable to Kenya.

Standing Order 67 (1) states that unless otherwise provided under the Constitution or any other written law, a question arising in the County Assembly shall be decided by a majority of the members in the County Assembly, present and voting.

The Senate will now be called upon to determine if Speaker Nyabaro acted lawfully by applying Standing Order 1 (1) in allowing an absentee to vote by proxy, or he should have applied 67 (1), which only requires those present to cast their votes.