This is the moment of truth for Kiambu Governor Ferdinand Waititu.
The Senate will Wednesday vote to either uphold his impeachment or dismiss the charges filed before it.
The House started hearing the charges against the governor on Tuesday following his impeachment by Members of Kiambu County Assembly on December 19, 2019.
The MCAs accuse the governor of abuse of office, gross misconduct and gross violation of the Constitution, the County Government Act and the Public Finance Management Act.
If the senators uphold any of the impeachment charges, Mr Waititu shall cease to hold office in line with section 33 (7) of the County Government Act. By operation of Article 182 (2) of the Constitution, Mr Waititu’s deputy, Dr James Nyoro, will take over as Kiambu’s new governor for the remainder of the term.
Sub-section 3 (a) of this Article provides that one shall be deemed to have served a full term as governor if, at the date on which the person assumed office, more than two-and-a-half years remain before the date of the next election.
The next General Election is scheduled for August 2022.
But even as the Senate makes the determination, not all senators will take a vote on the matter.
Article 123 of the Constitution provides that when the Senate is to vote on any matter other than a Bill, the Speaker shall rule whether it affects or does not affect counties.
When the Senate votes on a matter that does not affect counties, each senator has one vote.
However, an impeachment of a governor is a county affair, meaning that at least 24 of the elected 47 senators, who in the House constitute the heads of delegations from their respective counties, must vote to uphold any of the charges.
Each county has one vote to be cast by the head of the delegation. In their absence, another member (nominated senator) designated by the head of delegation shall vote.
The person who votes shall determine whether or not to vote in support of, or against the matter, after consulting the other members of the delegation.
If Dr Nyoro takes over, he will be required to appoint his deputy in line with the Supreme Court advisory opinion of March 2018.
The opinion requires governors to nominate their deputies within 14 days, if a vacancy occurs, and have the county assembly consider the matter in 60 days.
Already, precedents have been set where Nyeri and Bomet deputy governors occasioned vacancies in their respective offices by virtue of succeeding their bosses after they died in office.
In Nyeri, Deputy Governor Mutahi Kahiga was sworn in after Wahome Gakuru died in a road accident on November 7, 2017, barely three months into office.
The death of Bomet’s Joyce Laboso mid last year saw her deputy Hilary Barchok become governor.
The two have since appointed their deputies in line with the Supreme Court advisory, owing to a lacuna in the County Government Act and the Constitution.
The Constitution and the law do not envisage a vacancy upon death, impeachment or resignation of a governor.
However, an amendment to the County Government Act, if passed by Parliament, will resolve the problem. The County Government (Amendment) Bill 2018 stalled at the mediation level of the National Assembly and the Senate.
A mediation committee usually has 30 days to get a compromise version of a Bill disagreed by the two Houses and the fact that the committee never agreed means that the Bill will have to be reintroduced