Nipate
Forum => Kenya Discussion => Topic started by: Omollo on October 10, 2014, 08:35:35 PM
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I love this woman. They don't come tougher!
The Senate has been barred from deliberating the impeachment of Makueni Governor Kivutha Kibwana.
High Court judge Lady Justice Mumbi Ngugi granted the orders sought by lawyer Wilfred Nyamu on behalf of Prof Kibwana.
Mr Nyamu stated in the case he filed under a certificate of urgency that already a resolution paving the impeachment of Prof Kibwana had been forwarded to the Senate by the county assembly of Makueni.
He urged the judge to certify the case urgent submitted that the county assembly had already discussed and passed a motion for the removal of Prof Kibwana.
“Unless this court intervenes and grants a temporary relief, the Senate will proceed to discuss, deliberate and act on the recommendation of the county assembly of Makueni which has since passed the motion to remove Prof Kibwana as the chief executive of the,” Mr Nyamu told the judge.
The lawyer told the judge that on October 6, 2014 Prof Kibwana received a letter inviting him to appear before the assembly to respond to a motion tabled in the county assembly touching on his conduct.
NO SUPPORTING DOCUMENTS
The judge heard that on the same day, a four page document without any supporting annexures was delivered to the governor’s office. The document contained an array of allegations.
“Prof Kibwana prepared a detailed response to the motion denying every allegation and pointing out that there was no documentation attached to substantiate any of the allegations,” Mr Nyamu said.
He added that the assembly went ahead and passed a motion to impeach the governor.
The judge heard that the impeachment motion was discussed without the observance of the principles of natural justice.
Mr Nyamu pleaded with the judge to issue a conservatory order restraining the speaker of the Senate from “introducing, discussing, seizing or otherwise deliberating the impeachment of Prof Kibwana based on the resolution forwarded by the Makueni County Assembly.”
RIGHTS VIOLATED
He said that the constitutional and fundamental rights of the Governor were violated as he was not heard before the county assembly impeached him.
In her brief ruling Justice Ngugi certified the case filed by the Council of Governors, Prof Kibwana and the Makueni County Executives as urgent.
She directed that the case be transferred to Machakos High Court for hearing and determination before the Machakos Resident Judge on October 16, 2014.
Mr Nyamu was ordered to serve the pleadings on the Makueni County Assembly, the Speaker of the Senate Ekwe Ethuro, the Senate and the Attorney General who have been named as the respondents.
(http://www.nation.co.ke/image/view/-/2482272/highRes/848243/-/maxw/600/-/cmf9bu/-/mumbi-pic.jpg)
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Nyamu seem to be on a role. Yes god bless Mumbi Ngugi.That is one albino lady who should be a role model to everyone esp the disabled.
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Omorlo,
How do we rein in these crazy MCAs? Something about elected negroes being hounded out at the whims of other elected negroes just don't sound right
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Omorlo,
How do we rein in these crazy MCAs? Something about elected negroes being hounded out at the whims of other elected negroes just don't sound right
Some changes have to come from the top. If you examine the role of ministers of local government and the central government in the politics of local authorities, you will find that where the minister (who played the role of the senate today) responded negatively to removal of chairmen and mayors, the councillors behaved themselves. The best example would be Terrorist Moses Mudavadi who dared and dissolved the "untouchable" Nairobi City Council. The record shows zero motions of removal for the duration of his stay in the docket.
The bribe receiving Oloitiptip and the lazy Robert Matano saw the largest number of disturbances. Matano hit at Kisumu Municipal council more as a Kenyatta / Moi regime punching bag syndrome. It had no effect.
In brief, these matatas are engineered by the central government overtly or covertly.
Solution: I have none other than hope the courts will keep interfering. I am also pleased that the political constellation in the senate would unless by some fluke, remain unsuitable to the removal of governors. Sadly the MCAs are learning how to do it properly and within the law - perhaps hampered by the fact that a lie cannot be easily documented or backed up. I also note that the senate has not always done its job. In the case of Wambora, the senate's ego and self importance took center stage.
If the central government wanted, it would put a stop to all this in one go. For example the persons who took MCAs from Embu to Mombasa on paid holidays to plot impeachment could be brought on charges of corruption along with the MCAs while KRA would demand taxes for the amount used. The anti-money laundering unit would be waiting to question them about the source of the funds and in the end, for those convicted, the seats would become vacant. Do that and no MCA would want to hear the word "impeachment"
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Omolo, Moi dissolved the city council not Mudavadi.
Also, I dont think a judge can stop senate deliberations. That is beyond her mandate. However she can stop whatever comes out of those deleberations from taking effect. The impeachment process has become a sham.
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Omolo, Moi dissolved the city council not Mudavadi.
Also, I dont think a judge can stop senate deliberations. That is beyond her mandate. However she can stop whatever comes out of those deleberations from taking effect. The impeachment process has become a sham.
Under what law would the president dissolve a local authority bro? The law only empowered the minister for local government. I was recently reviewing the details for some task I have, hence I am pretty certain.
Here you go:
Local Government Act.
252. Removal of members, appointment of commission and winding-up of local authorities for certain reasons
(1) If at any time it appears to the Minister that—
(a) a period of three months or more has elapsed between one meeting of a municipal council and the next or a period of six months or more has elapsed between one meeting of any other local authority and the next; or
(b) any local authority is unlikely to be able to meet its financial commitments; or
(c) any local authority is in the opinion of the Minister failing to exercise its functions in such manner as would best serve the interests of the inhabitants of its area of jurisdiction,
the Minister may by order—
(i) remove from office all the members of such local authority who shall thereupon, notwithstanding anything to the contrary in this Act or any other written law, cease to be members thereof; and
(ii) in place of such members and for the area of such local authority appoint not less than three persons to form a commission for the purpose of carrying on the affairs of the local authority, and shall appoint one such person to be the chairman of the commission; or
(iii) in place of, or in addition to, the removal of members and the appointment of a commission as provided in paragraphs (i) and
(ii), direct, subject to subsection (5), that any local authority shall be wound up on any of the grounds specified above which shall be specified in the order.
(2) A commission appointed under subsection (1) shall have and may exercise all the powers of, and be subject to, and liable to discharge all the duties of, the local authority whose members have been removed from office whether such powers and duties are conferred or imposed by this Act or any other written law, and for such purpose any reference in this Act or any other written law to a local authority shall, where a commission is appointed under this section in place of the members of such local authority, be deemed to refer to such commission.
(3) A commission appointed under subsection (1) shall exercise the powers and perform the duties of a local authority for such period, not exceeding two years from the date of its appointment, as is specified in the order, and the Minister shall, unless the local authority is being wound up, take such steps as may be necessary to ensure that the local authority is reconstituted before the expiration of that period and is able to hold a meeting within a reasonable time after such expiration:
Provided that such period of two years may be extended—
(i) by the Minister by order, by a further period not exceeding one year;
(ii) thereafter by the Minister, by order made with authority of a resolution of the National Assembly, for an additional period or additional periods.
(4) Prior to the exercise of any power conferred by subsection (1), the Minister may direct such inquiry to be held as he may think necessary and, for the purposes of such an inquiry, shall appoint a person to hold the inquiry and may confer upon him all or any of the powers vested in a commission under the Commissions of Inquiry Act (Cap. 102); and at any inquiry directed under this subsection, the local authority in question and any member thereof shall be entitled to be heard.
(5) Before an order is made under subsection (1)(iii)—
(a) notice of the intention to make, and of the purport of, such order shall be published in the Gazette and in at least one newspaper (if any) circulating in the area of the local authority in question; and
(b) after the expiry of a period of not less than fourteen days from the date of publication of such notice in the Gazette, a draft of the order shall be laid before the National Assembly; and no such order shall have effect unless notice thereof is published as aforesaid and the National Assembly has, by resolution (of which at least twenty-eight days’ notice has been given to the National Assembly), approved the draft.
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Omolo,
Also, I dont think a judge can stop senate deliberations. That is beyond her mandate. However she can stop whatever comes out of those deleberations from taking effect. The impeachment process has become a sham.
Here is how it plays out:
1. The high court with universal national jurisdiction grants orders stopping debate;
2. Predictably, the Senate goes ahead and debates and impeaches the governor;
3. The governor goes back to the high court and complains that the senate disregarded the order anyway
4. He prays for (a)contempt proceedings against the senate and (b) the nullification of the impeachment
5. The High court grants (b) at express speed and stands over (a)
6. Governor goes back to office and MCAs are free to try again and hopefully learn not to cross the High court.
NB. Any act taken in contravention of a court order is dead and powerless from start. In brief that is how the Wambora case played out. Kibwana is a professor of Law. I can't see it playing any other way
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Omolo,
As much as I dont like the impeachment process, I also hate judicial activism. High court can not stop the senate from debating. The court can only act on the process. If there is no process you dont have a case.
And the court should not interfere with senate proceeding.
Stop and think.
Omolo,
Also, I dont think a judge can stop senate deliberations. That is beyond her mandate. However she can stop whatever comes out of those deleberations from taking effect. The impeachment process has become a sham.
Here is how it plays out:
1. The high court with universal national jurisdiction grants orders stopping debate;
2. Predictably, the Senate goes ahead and debates and impeaches the governor;
3. The governor goes back to the high court and complains that the senate disregarded the order anyway
4. He prays for (a)contempt proceedings against the senate and (b) the nullification of the impeachment
5. The High court grants (b) at express speed and stands over (a)
6. Governor goes back to office and MCAs are free to try again and hopefully learn not to cross the High court.
NB. Any act taken in contravention of a court order is dead and powerless from start. In brief that is how the Wambora case played out. Kibwana is a professor of Law. I can't see it playing any other way