One
of the current debates in our nation for members of the executive at the County
and National levels of government is the question of impeachment. Two governors
have been impeached by their respective assemblies and most importantly, a
cabinet secretary is now facing an impeachment motion. Broadly speaking, ‘to
impeach’ is to bring an accusation against someone through an appropriate
tribunal. However the Constitution talks of ‘dismissal’ not ‘impeachment’.
One
of the missing link in the impeachment of cabinet secretaries is the blatant
disregard of best practices in handling employee affairs. Often political
considerations overpower objectivity. As regards cabinet secretaries, they occupy
a constitutional office by virtue of Article 152 of the Constitution. Cabinet
secretaries are employees of the National Executive and are accountable to the
President collectively and individually by virtue of Section 9(2) of the
National Government Coordination Act. On the other hand they also occupy an
office that attracts huge political interest and oversight from the national
assembly. They are for instance are appointed on approval by the national
assembly and can likewise be dismissed by the President or through the national
assembly.
Article
152 (6) - (10) of the Constitution has an elaborate procedure for appointment
and impeachment of a cabinet secretary. As for impeachment, a member of the
national assembly may propose a motion to dismiss a cabinet secretary for
violating the Constitution, committing an international crime or gross
misconduct. If approved by a third of the members, a committee is formed to
investigate. In carrying out such investigations, it is expected to afford the cabinet
secretary an opportunity to present a defence. The committee can either find
the allegations to be substantial or unsubstantial. If substantial, the cabinet
secretary is given an opportunity to be heard (presumably in the national
assembly) after which a vote is taken on a resolution to dismiss the cabinet
secretary. If the motion is supported by a majority, the cabinet secretary
stands dismissed.
However
if you examine the manner in which the national assembly has been conducting
the impeachment process, it raises a critical question. Are best practices in
labour law practice on dismissing employees are adhered to? For illustration
purposes, let’s take a cabinet secretary to be an employee of the national
executive. Is a cabinet secretary accorded a fair chance to be heard? What is
the best labour law practice in handling impeachment of cabinet secretaries?
Are there any benchmarks so as to ensure that political witch-hunt is well checked?
Who enforces these standards? These and any others are the questions that the
process being undertaken by Parliament raises.
The
national assembly can borrow benchmarks from the procedure of dispute
resolution in strictly labour disputes. This procedure is provided under the
Employment Act and Labour Relations Act. In a nutshell, once a dispute arises
within an employment relationship, it is placed before a conciliator. The
conciliator listens to both parties, establishes whether there is a dispute and
gives a decision on how best to resolve the dispute. If parties fail to agree,
the parties can still go to the Industrial Court. However the Industrial Court
can still ask parties to attempt settling the dispute through alternative means
including conciliation, negotiations, mediation or arbitration. Once these
mechanisms fail, the Court will inevitably render its decisions, which parties
must obey. If dissatisfied, one can always appeal. In doing all these the Court
will seek to ensure that an employee is accorded a fair hearing. Meaning an
employee should have a date with his/her accusers and give a response to every
allegation. If an employee is not accorded this chance, then the decision may
be declared invalid.
The
position of cabinet secretary is both a constitutional office. However, it is
still in the best interest of the country for the national assembly to adopt a
procedure that guarantees the rights of a cabinet secretary against whom
allegations are made. This will ensure an objective criterion is adopted in
determining for instance what amounts to gross misconduct. The means of
arriving at a decision must be seen to be fair and just and not an attempt to
settle political scores. The national assembly should be innovative in applying
Article 152 of the Constitution so that cabinet secretaries are assured that they
have the blessings to govern their dockets without the fear of facing
impeachment.
