CAF MEMORANDUM ON THE COUNTY GOVERNMENTS (STATE

OFFICERS’ REMOVAL FROM OFFICE) PROCEDURE BILL, 2024

(SENATE BILLS NO. 34 OF 2024)

TO: Mr. Jeremiah Nyegenye, CBS

Clerk of the Senate, Parliament of Kenya.

FROM: The County Assemblies

Forum. DATE: 30th August 2024

SUBJECT: CAF Memorandum on The County Governments (State Officers’

Removal From Office) Procedure Bill, 2024 (Senate Bills No. 34
Of 2024)
 1.0 INTRODUCTION
1. The County Assemblies Forum (CAF) is the coordinating body of the 47
County Assemblies in Kenya. The primary mandate of CAF is to
promote networking and synergy among the 47 County Assemblies,
coordinate intergovernmental relations and enhance good practice in
legislative development. Our Mission is to provide effective leadership
and coordination of the 47 County Assemblies and through policy and
legislative action, promote a conducive working environment for all its
members, and in that way deliver quality services to the people.
2. As one of the pillars of the devolved government system, CAF is
committed to engage in processes promote good governance at the
County Level.
2.0. BACKGROUND

2.1. The Bill seeks to put in place a legal framework for the removal from
office of a county governor, a county speaker, a county deputy
governor, a county executive committee member and a county
secretary. It achieves this by clearly providing a procedure for removal
of a county governor and a county deputy governor either by
impeachment or for incapacity and the procedure for removal of a
county speaker, a county executive committee member and county
secretary through a resolution of the respective county assembly.

2.2. During the 12th Parliament, the Senate originated the Impeachment
Procedure Bill, 2018 which sought to put in place a legal framework for
the removal of State officers from office serving in the National and
county governments. This Bill was passed by the Senate on 12th June,
2019 and forwarded to the National Assembly for consideration.
However, the Bill lapsed in the National Assembly when the term of the
12th Parliament ended before the Assembly finalized its consideration
on the Bill.

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2.3. While considering the proposed removal from office, by impeachment, of
Hon. Kawira Mwangaza, the Governor of Meru County, it was recommended
that the draft Impeachment Procedure Bill be split into two legislative
proposals; the County Governments (State Officers’ Removal from Office)
Procedure Bill to regulate the process of removal of State Officers serving in
county governments from office and the National Government (State
Officers’ Removal from Office) Procedure Bill to regulate the process of
removal of State Officers serving in the National Government from office.

2.4. Further, it was proposed that the timeline for consideration of an

impeachment resolution by a Senate Committee be increased to fourteen
days and that section 33 of the County Governments Act, 2012 be amended
to ensure that the report of a special committee is considered by the
Senate whether or not the Committee finds any charge to have been
substantiated.
2.5. The various impeachment process relating to a county governor or a deputy
county governor that have been undertake since the inception of devolution
have revealed gaps in the law. These gaps include, short timelines within
which the process ought to be concluded, the type and extent of public
participation in such a process, the role of the Senate one a special
committee has found that none of the charges has been substantiated,
connection between the charges and the governor or deputy governor, and
threshold for determining and impeachment.

2.6. A member of a county assembly who intends the removal of a county

assembly speaker or a deputy county assembly speaker is required to table
a motion setting out the grounds in the assembly for consideration. If a
county assembly approves the motion, the speaker of deputy speaker
ceases to hold office.

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2.7. The key changes are as follows —
a) upon passage of a motion for the removal of the speaker of a county
assembly by a simple majority of members of the county assembly, a
special committee of not more than nine members is to be
established to investigate the matter and establish if the allegations
have been substantiated; and
b) once the report of the special committee is tabled before the county
assembly and considered by it, the county assembly is to vote on
whether or not to approve the charges against the speaker or deputy
speaker. A two-third majority is required to approve the removal.

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3.0. GENERAL COMMENTS.
3.1. The County Assemblies Forum (CAF) acknowledges the significant
improvements introduced by the County Governments (State Officers'
Removal from Office) Procedure Bill, 2024. However, while the Bill addresses
critical issues, certain aspects warrant further consideration to ensure the
effective and fair implementation of the proposed framework.

3.2. The Bill provides a comprehensive and detailed legal framework for the
removal of county state officers, filling gaps in the current legislation. This
structured approach will help prevent arbitrary and politically motivated
removals, ensuring that due process is followed.

3.3. The Bill introduces provisions that prohibit the impeachment of a county
governor within the first six months of assuming office and restrict the re-
introduction of an impeachment motion within 90 days of an initial failed
attempt. This offers necessary protection against frivolous impeachment
efforts, allowing governors to focus on their mandate.

3.4. The requirement for public participation and transparency in the removal
process aligns with constitutional principles of public involvement in
governance. This provision ensures that the removal process is conducted
openly, fostering public trust in the integrity of the process.

3.5. The procedure for the removal of a county assembly speaker (Clause 26)
may be vulnerable to abuse, particularly in politically charged
environments. The involvement of a simple majority to initiate the process
may lead to frequent and destabilizing attempts to remove speakers,
undermining the stability of county assemblies.

3.6. While the Bill outlines grounds such as "gross misconduct" and
"incompetence," these terms remain broadly defined, leaving room for
subjective interpretation. Without clear definitions, there is a risk that these

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 grounds could be misused to target county state officers for political reasons
rather than genuine misconduct.

3.7. The Bill provides a detailed removal process but lacks sufficient provisions
to protect county state officers during the investigation phase. For example,
the suspension of a speaker or executive committee member pending
investigation could unduly impact their ability to defend themselves,
particularly if the allegations are later found to be unsubstantiated.
3.8. CAF appreciates the opportunity to contribute to this Bill and on the basis of
the foregoing proposes the following amendments

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 4.0 SUMMARY MATRIX OF THE PROPOSED AMENDMENTS.

NO. CLAUSE PROPOSED AMENDMENT JUSTIFICATION

1. Clause 25 Amend the Clause to provide  This amendment introduces
Removal, from office, of a a new clause 25(B) to an accountability
county secretary. provide: - mechanism for county
The procedure for the removal “The procedure for removal executive committee
from office of a of a governor on account of members, aligning with
county executive committee physical or mental incapacity existing provisions for
member under this Part shall, shall, with necessary governors and speakers. By
with necessary modifications, modifications, apply to the including them in this
apply to the removal, from removal of the county removal process, the
office, of a county secretary. executive committee amendment ensures that all
member.” senior officials are held to
high standards of capability
and accountability, further
promoting good
governance.
2. Clause 26 (1) of the Bill Amend the Clause to state to  Increasing the threshold to
Removal of a County provide two-thirds would prevent

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Speaker or County Deputy “A member of the county frequent and potentially
Speaker assembly may initiate the politically motivated
“A member of a county process of removing the removal attempts, ensuring
assembly, supported by at least county speaker or county greater stability within
a third of all the members of deputy speaker by securing county assemblies. This
the county assembly, may the support of at least two- amendment aligns with the
move a motion for the removal thirds of all the members of principle of protecting the
of the county speaker or county the assembly” office of the speaker from
deputy speaker from office for arbitrary removal and
— Further amend the clause by upholds the integrity of the
(a) gross violation of the removing the sub clause county assembly.
Constitution or any 26(1) (d)  The current inclusion of
other law; “bankruptcy” bankruptcy as a ground for
(b) incompetence; removal in Clause 26(1)(d)
(c) gross misconduct; is inconsistent with
(d) bankruptcy; or provisions for the removal
(e) conviction of an of governors or county
offence punishable by executive committee
imprisonment for at members, where
least six months..” bankruptcy is not explicitly
listed as a disqualifying

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 factor.The principle of
equity demands that the
grounds for removal should
be consistent across key
county leadership positions.
If bankruptcy is not a
ground for removing a
governor or executive
committee member, it
should not apply to the
county speaker or deputy
speaker. This ensures
fairness and uniformity in
the treatment of county
officials.
3. Clause 26 (2)(c) Amend to state:-  Raising the threshold for
“signed in support by at least “signed in support by at least initiating the removal of a
a third of all the members of two thirds of all the county speaker or deputy
the county assembly.” members of the county speaker to two-thirds
assembly. ensures that such motions
are based on broad

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 consensus rather than
narrow political
maneuvering. This higher
threshold is crucial to
preventing frequent and
destabilizing attempts at
removal, ensuring the
speaker’s ability to carry
out their duties effectively
without fear of politically
motivated threats of
removal.
4. Clause 27 (1) of the Bill Amend the Sub-Clause 27(1)  Introducing an additional
Approval of a Motion for (b) as follows: - layer of approval ensures
Removal “the special committee shall, that the removal process is
“1) If a motion for the removal within fourteen days, thorough and that decisions
from office of a county investigate and report to the are supported by a broad
speaker or county deputy county assembly on consensus within the
speaker is passed by a whether it finds the county assembly, rather
simple majority of all the allegations against the than a small committee,
members of the county county speaker or county thereby safeguarding

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assembly— deputy speaker to be against misuse of the
(a) the county assembly shall substantiated.” removal process.
forthwith appoint a  The Forum proposes the
special committee comprising Further amend by adding a removal of sub clause 27(2)
not more than nine sub clause 27(1)(c) to state because of the following
of its members to investigate “The findings and reasons: -
the matter; and recommendations of the a) The clause
(b) the special committee special committee shall be undermines the
shall, within seven days, subjected to a further vote by principle of
the full county assembly,
investigate and report to the presumption of
requiring a majority vote for
county assembly on innocence by
the removal of the speaker or
whether it finds the allegations penalizing the
deputy speaker to be finalized”
against the county speaker or speaker or deputy
county deputy speaker to be speaker before a fair
substantiated. determination is
(2) The county speaker or made.
county deputy speaker b) Immediate
whose motion for removal suspension disrupts
from office is passed under the leadership and
subsection (1) shall not functioning of the
perform any of the functions of county assembly,

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the potentially causing
office pending the administrative delays
determination of the county and instability.
assembly. c) The clause could be
exploited for political
gain, allowing
members to
incapacitate the
speaker or deputy
speaker without valid
grounds.
d) Removing the clause
aligns the process
with other legal
frameworks where
officials continue to
serve until a final
decision is made.
e) This removal ensures
that the speaker or
deputy speaker is not

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 unfairly penalized
based on unfounded
allegations, upholding
the integrity of the
process.
5. Clause 27(2) Amend by deleting the  The current provisions allow
“The county speaker or county section and providing as a county governor to
deputy speaker whose motion follows:- continue performing their
for removal from office is “the county Speaker shall functions while
passed under continue to perform the impeachment proceedings
subsection (1) shall not functions of the office of are ongoing. In the interest
perform any of the functions of County Speaker pending the of equity and fairness, the
the office pending the outcome of the proceedings same provision should
determination of the county required apply to the county
assembly.” by this Act.” speaker.
 The speaker is the leader of
the county assembly and is
responsible for presiding
over its sessions, ensuring
that legislative business
proceeds smoothly.

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 Preventing the speaker
from performing their
functions during the
removal process could lead
to legislative gridlock, delay
essential debates, and
hinder decision-making
processes.
 Removing the speaker from
office before a final
determination undermines
the principle of
presumption of innocence.
Just as the governor
continues to perform their
duties pending the outcome
of impeachment
proceedings, the speaker
should be afforded the
same rights, ensuring that
they are not prematurely

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 penalized before all facts
are considered and due
process is completed.
6. Clause 28 of the Bill Amend the Clause 28(1) to  Extending the timeframe
Determination of the state:- for debate and voting
County Assembly “(1) Upon the tabling of the allows for more
“(1) Upon the tabling of the report pursuant to section 28 comprehensive deliberation
report pursuant to section 28 (1) (b), the county assembly and inclusion of public
(1) (b), the county assembly shall, within seven days— participation, reducing the
shall, within four ……….” risk of hasty decisions
days— driven by immediate
(a) furnish the county speaker Amend the Clause 28(2) to political pressures. This
or county deputy speaker state:- ensures the process is
with the report of the “Subject to section 29, if a thorough and reflective of
special committee, motion for the removal the assembly's collective
together with any
other from office of a county judgment
speaker or county deputy
evidence adduced before  A 75% threshold ensures
speaker is
the special committee at supported by at least 75% of that the speaker's removal
all the members of a
least three days before the is only pursued in the most
county assembly, the county
day scheduled for her or his speaker or county deputy serious cases, reducing the
appearance before the speaker shall cease to hold risk of frequent and

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 county assembly; office’ destabilizing challenges to
(b)afford the county speaker the assembly's leadership.
or county deputy speaker Amend the Clause 28(3) to  Raising the threshold limits
an opportunity to be heard; state:- the potential for politically
(c) consider the report of the “If a motion for the removal motivated removals,
special committee; and from office of a county ensuring that such actions
(d) vote on whether to speaker or county deputy require broad and
approve the motion speaker is not supported by substantial support, thereby
requiring the removal from at safeguarding the speaker's
office of the county speaker least 75% of all the members office from factional
or county deputy speaker. of a county assembly, interests.
(2) Subject to section 29, if the county speaker or county  The 75% requirement
a motion for the removal deputy speaker shall resume guarantees that removal is
from office of a county performing the functions of supported by a
speaker or county deputy the office” supermajority, reflecting a
speaker is significant consensus within
supported by at least two- the assembly. This
thirds of all the members of consensus strengthens the
a legitimacy and fairness of
county assembly, the the removal process.
county speaker or county  A higher threshold protects

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 deputy the speaker's role from
speaker shall cease to hold undue influence, allowing
office. them to perform their
(3) If a motion for the duties with greater
removal from office of a independence and
county confidence, free from
speaker or county deputy constant threats of
speaker is not supported by removal.
at  By making removal more
least two-thirds of all the challenging, the
members of a county amendment encourages
assembly, both the speaker and
the county speaker or assembly members to focus
county deputy speaker on constructive governance
shall resume and conflict resolution,
performing the functions of fostering a more stable and
the office.” effective legislative
environment.
7. Clause 36 of the Bill Amend the clause by adding  The Senate plays a critical
Speaker of County Assembly an new sub-clause 36 (b) role in the impeachment
to maintain neutrality after 36(a): - process of county

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 “. A speaker of a county “36 (a) A speaker of a county governors and other state
assembly shall maintain assembly shall maintain officers. By requiring the
neutrality when undertaking any neutrality when undertaking Senate speaker to maintain
function under this Act..”
any function under this Act. neutrality, this amendment
36 (b) The speaker of Senate ensures that the principles
shall maintain neutrality of fairness and impartiality
when undertaking any are upheld throughout the
function under this Act. " entire impeachment or
removal process, from the
county assembly to the
Senate.
Yours sincerely,

HON. PHILEMON K. SABULEI,

CHAIRPERSON CAF

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