“Despicable” behaviour outside debating chamber not privileged, judge tells assembly members

Dressed in a pink suit and looking rather bewildered, Nairobi city county Speaker, Beatrice Elachi, is seen on camera watching as protesting assembly members demonstrate in her office. They wanted her to step down and yelled and shouted at her to achieve their aim. Since that day in September 2018, Elachi has been removed from her position – but the demonstrating assembly members are now under investigation by the Ethics and Anti-Corruption Commission for their behaviour in her office. Indignant at what they saw as an infringement on their right to “privileged” proceedings, the assembly members went to court. But their reception at the high court in Nairobi was not what they had hoped.

Read judgment

A year to the day after she was elected Speaker, Beatrice Elachi was thrown out of office after a demonstration by assembly members. Or, as Wikipedia more politely puts it, she was "impeached" as the speaker of Nairobi County Assembly.

Media videos made on 6 September 2018,  show what went down, with footage of events in and outside the office of the Speaker. But protests and steps to remove her had begun months before and in June of that year she was suspended from the assembly’s service board, a move that ultimately terminated in her impeachment.

The claims against her were serious and included abuse of office and gross misconduct.

But while she has now been impeached and removed, those who demonstrated against her during the first week of September last year, trying to intimidate her into going, are also facing action.

On 11 September 2018 the Ethics and Anti-Corruption Commission summonsed a dozen assembly members to appear before the commission. Their appearance related to investigations by the commission over their role in the demonstration leading to the impeachment of the Speaker. The commission also demanded that the clerk of the assembly should provide “the Hansard proceedings” as well as any other relevant orders papers and information about the impeachment process.

The assembly members did not take kindly to this and within a week they were in court, demanding that the commission be put in its place. In particular, they wanted the court to set aside the commission’s summons for the assembly members to appear before it, and for the clerk of the assembly to produce records.

They quoted the law to the effect that “No proceedings … of a county assembly … shall be questioned in any court”, and that “no civil or criminal proceedings” shall be brought against any member for “words spoken before” or written in a report to a County Assembly.  

In their view, their “impeachment” of the speaker was something done in the course of their performance of their legislative duties and the ethics commission had no power to question the proceedings of the assembly. By summonsing them, the commission violated their parliamentary privilege, and in any case, there was a special internal committee to which suspected violation of privilege ought to be referred. In acting against them, the ethics commission “usurped” the role of the assembly’s own committee and acted beyond its powers in a way that was illegal and an abuse of office.

The ethics commission’s investigator, however, told the court that assembly members had to respect the values and principles of the constitution as spelled out in the Leadership and Integrity Act and the code for officers of an assembly under that Act.

When assembly members gathered at the offices of the Speaker, they “caused commotion, shouting, wailing and forcefully gaining entry” to her office, all of which was captured by the media. Their conduct bordered on unethical behaviour and/or was of a criminal nature and it was thus not covered by parliamentary privilege.

In its judgment the court said it was curious that the assembly members did not deny being part of the “scuffle” under investigation by the commission, “nor have they explained how such a scuffle can by any stretch of imagination (be said to) form part of a legislative debate”.

Judge John Mativo said it was totally wrong and misleading for the assembly members to argue that they were being questioned over their participation in a legislative process since the actions under investigation took place outside the debating chamber. The “fracas’ being investigated by the commission was such that no civilized parliamentary system in the world would “accord it parliamentary privilege”, he added.

If the commission could prove that the “fracas in question” could lead to “criminal culpability” it could not be part of a legislative process and immunity under the law was not available to protect conduct such as that.

Criminal investigations against assembly members were not precluded by the commission’s own inquiries. “In other words, the privilege claimed may be a sword, but not a shield in criminal matters.” Under the Constitution, those whose conduct “does not bring honour, public confidence and integrity have no place in the management of public affairs”. State officers were to behave in public and private life in a way that did not demean their office.

Against this background, the court respected the constitutional role of the commission and found no reason to interfere with its investigations.

Dismissing their application with costs this week, Judge Mativo said the correct approach for the assembly members would have been to have subjected themselves to the process and then to challenge the outcome if they were aggrieved by it. Moreover, the court would not allow the members to “use immunity (of privilege) as a shield against criminal culpability.”