Why Babu Owino’s Bid to Oust Health CS Susan Nakhumicha is Doomed from the Start
Embakasi East MP Babu Owino’s proposal to dismiss Health Cabinet Secretary Susan Nakhumicha might face significant hurdles, especially considering the precedent established by former National Assembly Speaker Justin Muturi.
In his motion submitted to the Clerk of the National Assembly on April 4, 2024, Babu Owino accuses Ms. Nakhumicha of significant breaches of the Constitution and ineptitude in managing the crisis within the health sector.
The disruption in services at public hospitals, potentially leading to fatalities, is attributed to the continuing strike by healthcare professionals such as doctors, clinical officers, and laboratory technicians.
With the looming nurses’ strike approaching, Ms. Nakhumicha, serving as the Minister of Health, is undoubtedly facing significant challenges.
The Embakasi East Member of Parliament, currently serving his second term, alleges that the Health Cabinet Secretary has contravened the provisions outlined in Articles 26 (1) and 43 (1) (a) of the Constitution.
Article 26 (1) of the Constitution guarantees the right to life for all individuals, while Article 43 (1) (a) ensures everyone’s entitlement to the utmost achievable level of health, encompassing access to health services, including those related to reproductive health.
Mr. Owino may have valid grounds to pursue the dismissal of CS Nakhumicha according to Article 152(6).
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However, what he might be unaware of is that during the tenure of Justin Muturi, the previous Speaker of the House in the 11th Parliament, measures were implemented that rendered it extremely difficult to impeach or oust state officials such as the President, Deputy President, Cabinet Secretaries, and members of a Constitutional Commission.
Similar to the precedents established by judicial decisions, future Speakers of the House have the option to either adhere to the rulings of their predecessors or overturn them and establish their standards.
Speaker Moses Wetang’ula can expect a similar outcome in Mr. Owino’s endeavor. According to the Constitution, the reasons for impeaching or removing a public official are comparable.
They encompass serious breaches of the Constitution or other legal statutes, perpetration of criminal acts according to national or international regulations, and significant misbehavior.
Besides the variance in the threshold necessary to back the motion, the constitutional regulations governing the dismissal of state officials exhibit a resemblance in their wording.
In a statement addressed to the House on October 22, 2015, the former Speaker Muturi noted that in many jurisdictions where the legislative body holds authority over removal, the process of removal is intricate and burdensome.
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“The thresholds are not precisely defined in the constitution itself and, therefore, it is the responsibility of the House to determine grounds and particulars based on their respective constitutions,” said Mr Muturi.
He noted that “in most cases, the constitutional framework is skeletal, providing minimum guidance as to the nature of the proceedings and leaving the void to be filled, to a great extent, by the House rules, procedures and precedents.”
As a solution to this issue, the Speaker instructed that any special motions for impeachment and dismissal of a state official must adhere to the standards set by the courts regarding what qualifies as a significant breach of the Constitution or severe misconduct as outlined in the Constitution.
To guarantee compliance, Mr. Muturi emphasized that special motions must include the requisite evidence, such as annexes and sworn testimonies related to the allegation, for the Speaker to make a decision.
Once it is established that the reasons are justified according to the evidence presented, the petitioner is permitted to proceed with gathering signatures, which must be supported by a minimum of one-fourth of the 349 Members of Parliament in the House, totaling 88 members.
The proponents of these motions must also seek drafting support from the Clerk’s office before beginning the signature-gathering process.
Article 145 of the constitution outlines the process for impeaching the President, while Article 150 (2) specifies the procedure for removing the deputy president.
Article 152 (6) of the constitution stipulates the process for the dismissal of a Cabinet Secretary, while Article 251 (1) outlines the procedure for removing a member of a constitutional commission.
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Speaker Muturi set the tough rules ostensibly to “protect state officers from frivolous impeachment or removal from office motions.”
Before Speaker Muturi implemented stringent regulations, only a single motion seeking the removal of a Cabinet Secretary had made any progress in the legislative assembly.
According to Article 75 (3) of the constitution, an individual who has been terminated or otherwise ousted from a state position due to misconduct is ineligible to hold any other state position.
According to Article 152 (6) of the constitution, a National Assembly member, with the backing of at least one-fourth of the Assembly’s 349 members (which amounts to 88 MPs), has the authority to suggest a motion demanding the removal of a Cabinet Secretary (CS) by the President.
This shall be based on the grounds provided in the constitution.
The constitution further specifies that if a motion garners support with signatures from at least one-third of the National Assembly’s members, totaling 117 MPs, the House will proceed to establish a select committee consisting of eleven of its members to conduct an inquiry into the issue.
According to the Standing Orders, a Member of Parliament has the option to retract their signature endorsing a special motion before its inclusion in the Order Paper.
Nevertheless, this situation generates unpredictability and ambiguity within impeachment procedures, potentially opening avenues for the misuse of such processes. There’s a risk that an MP could be pressured or coerced into retracting their previously affixed signatures from a list.
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But for purposes of certainty and good order in the conduct of the business, the House amended its Standing Orders requiring that “no withdrawal of signatures will in future be permitted where the MP has sought assistance from the Office of the Clerk, before embarking on the collection of signatures.
Article 152 (7) of the constitution assigns the responsibility of impeaching a Cabinet Secretary of the National Assembly to a specific committee. This committee is tasked with conducting an investigation and submitting a report to the House within 10 days, indicating whether the allegations against the Cabinet Secretary are supported by evidence.
The CS has the right to appear and be represented before the select committee during its investigations.
In the event the select committee reports that it finds the allegations unsubstantiated, no further proceedings shall be taken.
If substantiated, the National Assembly shall allow the Cabinet Secretary to be heard and vote whether to approve the resolution requiring the Cabinet Secretary to be dismissed.
This implies that a duty is imposed on the special committees to examine and interrogate the facts as stated in the special motion amounting to alleged gross violation of the constitution or gross misconduct.
“To this extent, the findings of the Special Committees must be guided by the interpretation precedent set by the courts of law.”
Once a resolution requiring the President to dismiss a Cabinet Secretary is supported by a majority of the members of the National Assembly, the Speaker shall promptly deliver the resolution to the President and the President shall dismiss the Cabinet Secretary.
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On June 13, 2014, the Igembe South MP Mithika Linturi, the current Agriculture Cabinet Secretary, disappeared after his motion that sought to have then Devolution Cabinet Secretary Ms. Anne Waiguru fired from cabinet, was approved by Mr Muturi and communicated to the members at the plenary.
When the Speaker called out Mr Linturi’s name to move the motion, he was nowhere, meaning that the motion could not proceed and therefore, died on the spot.
At the time Mr. Muturi issued the tough guidelines, then Nandi Hills MP Alfred Keter had filed a motion for removal from office of Ms. Waiguru over what he called a gross violation of the constitution and abuse of office charges.
In 2020, Nyali MP Mohamed Ali wanted then Transport Cabinet Secretary James Macharia fired over similar grounds but his motion did meet the threshold set by the Speaker’s ruling.
According to the former Speaker’s ruling, the question of determining what constitutes a gross violation of the Constitution or gross misconduct “is one that clings and hangs on the impeachable authority of the House and is excisable in two instances.”
This includes at the point of the approval of the motion for impeachment or dismissal and at the point of investigations conducted by the relevant select committee.
At the first instance, the House rules require the Speaker to take into account constitutional and evidential requirements while determining the admissibility “or otherwise of a motion.”
Why Babu Owino’s Bid to Oust Health CS Susan Nakhumicha is Doomed from the Start