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{
    "id": 695113,
    "url": "http://info.mzalendo.com/api/v0.1/hansard/entries/695113/?format=api",
    "text_counter": 1244,
    "type": "other",
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    "speaker": null,
    "content": "This is to clear your mind as to your role in the matter and the role of the courts because it is an issue that has been alive before in our submissions. The Court of Appeal had the extract at page 112, paragraph 32. It was following in just trying to define what is the respective roles of each of the institutions set out in our Constitutional design that have a role in this matter. I will only read the last four lines that say:- “Article 181 of the Constitution does not vest the courts with the jurisdictions to hear charges relating to the removal of a Governor from office. From the dicta in Mulberry versus Madison, it is our considered view in so far as the process of the removal of a Governor from office is concerned, the province of the court is solely to decide on the rights of individuals and not to enquire on how the County Assembly and the senate perform duties in which they have discretion.” Let me turn to duties in which this House has discretion. So, in the matter of consideration of these charges, the Court of Appeal has found that this House has discretion. The judgment of this House is what is applicable in the matter and in regard to the question relating to the removal of a Governor from office under Article 181. Therefore, it is for this House to consider the charges that have been brought before you. It is for you, first of all, to decide whether those offences, in the scheme of things within counties are gross and whether there is responsibility personally on the part of the Governor and whether the threshold has been realised. You can find that discretion nowhere else. It is resident in this House. We urge that the Senate does rise to the occasion and interrogate the charges and when you do, it will be clear beyond peradventure that the charges have been established beyond doubt. In following to that to further give you confidence in the exercise of this very important discretion, on page 118 of the same judgment of the Court of Appeal, the Court cited the decision in Nancy Barasa versus Judicial Service Commission (JSC). Mr. Deputy Speaker, Sir, let me start from paragraph 49. This was the finding of the court that: “It is not for this court or the commissions to find the allegations made against the petitioner do not amount to gross misconduct” In fact, according to Prof. Yash Pal Ghai, “Kenyan Constitution, An Instrument for Change” cited by the petitioner:- “Whether a conduct is gross or not, will depend on the matter as exposed by the facts available in the matter that is before you which is the duty of the tribunal to establish. It is not the duty of the courts. It is the duty of the tribunal seized of the matter to establish.” Mr. Deputy Speaker, Sir, so in all the constitutional, legal and the factual issues raised, this House has absolute discretion within the constitutional parameters that guide all of us to make a determination and when we do, we will uphold and confirm the charges. Article 181 is provided deliberately within the Constitution to provide for instances which, in the estimation of a county assembly and the Senate, cannot be resolved in any other way apart from the removal of a county governor. The facts as presented - and in fact it is clear from the House that there is a crisis of unprecedented proportions in that county because it has become impossible to operate and receive proper reports. There is expenditure being expended without disclosure. We have to file charges so that we can get a complete report of how money has been spent. That is happening and it is clear to the Senate. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}