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November 21, 2018

What if the Trump-Comey saga in the US happened in Kenya?

Trump-Comey saga

 

President Donald Trump sacks James Comey, the head of the Federal Bureau of Investigation, creating a storm with words and phrases such as “outrage”, “constitutional crisis” and “impeachment” being bandied around. Why does this matter and does it have any relevance for us?

We can look at this from several angles. First, it is not really clear why Comey was sacked.  Strong suspicion connects it to the FBI investigations into the links between individuals connected with the US President, and Russia, particularly whether those links had been used to undermine the campaign of Trump’s rival during last year’s presidential elections.  But the President has not clearly explained.  And no official reason was given. If such an important state official is dismissed, should it not be clear why? 

Second, is the suspected reason itself. Is the issue whether another country tried to interfere with the US presidential election not something very serious that ought to be investigated without obstruction?

Third, if this was the reason, the President would seem to have acted, if not to save his own “skin”, to protect others by hindering investigation into something that those close to him had done. A clear example of allowing private interest to “trump” public duty.

Fourth, an aspect of the accountability of the US system of government may have been harmed, because an investigation that ought to be carried out has been obstructed.

Obstruction of a criminal investigation is normally itself a criminal offence.

Then there is the issue of general principle. A practice has developed of the FBI head having a ten-year term, which would cover more than one President. The office is seen as an independent one, not subject to the whims of the government of the day. One American law professor was asked, “Do you believe that an FBI investigation of President Trump can continue and be credible under a new director?”  He replied, “It has to be an independent investigation. Whoever is picked by President Trump …will be inherently suspect.”

There is also a story that Comey declined to pledge loyalty to the President — though he perhaps agreed to promise “honest loyalty”.

And there is the procedure: Comey got no warning, apparently, no chance to put his own case as to why he ought not to be sacked. He first learned that he had been dismissed from the news headlines on a television channel. A bit like the roadside dismissals announced on the 1 pm news in the days of our very own President Daniel Moi.

Finally, the rule of law: Everyone is equal under the law, except for certain limited and exceptional circumstances. Trump’s behaviour is a denial of the rule of law: He wants to wriggle out from an investigation in a way that no other American could.

To summarise, a President dismisses an officer of state, without giving clear reasons to the nation or the victim. He seems to have intended to impede an investigation in order to protect himself or those close to him. His actions undermine the credibility of an important public office: Will the people in future feel confident that future holders of the office are acting in the best interests of the nation rather than to please the president and protect their own position?

One commentator said, “World history is replete with dictators, despots, and authoritarians, who have been rightly condemned for using their office to eliminate their critics and weaken democratic checks on their power. To witness this act in a country that prides itself on its democratic principles and values is both shocking and deeply troubling.”

 

Suppose it was Kenya?

We do not have an agency quite like the FBI. The Directorate of Criminal Investigation, which is part of the National Police Service, investigates ordinary crimes. There is also the National Intelligence Service, once part of the police but now separate.

The Constitution says, “The national security organs are subordinate to civilian authority”.

It is important to realise that this does not mean the government can tell any part of the police how to do its job. It can give general instructions on policy, but not about investigating any particular case, how it treats any particular person or employment or dismissal of any particular officer. The situation is less clear for the NIS.

Though the President appoints the Inspector General of Police, he can remove him or her only because of something serious, including serious violation of the Constitution or any other law, gross misconduct, incapacity or incompetence. There is another reason: “Any other just cause”. This does seem rather broad and unclear. But it does mean that the President cannot dismiss for no particular reason. And it means that the reason ought to be clear.

The Constitution gives the President no power to dismiss any other police officer.  But things are different for the NIS: The President may dismiss the Director General, and neither the Constitution nor the law prescribes any procedure or any justifications for dismissal. Almost certainly the NIS rather than the police would investigate a case similar to the Trump-Russian affair.

However, like any other public officer, the President must make any administrative decision in a fair way. That would include a decision to dismiss someone — including the IGP and the Director General of the NIS. Fair decision-making includes giving a person likely to be affected a chance to put his or her own case. It includes not making decisions on the basis of personal interest. And it includes a duty to give reasons.

The right of access to information means that anyone could ask the President to explain why a decision has been taken.  There are good reasons sometimes for refusing information. Protecting oneself would not be a good reason.

Chapter Six of the Constitution says any state officer must avoid any conflict between his or her personal interests and public duties. This applies to the President as much as to any other person. And a gross violation of the Constitution is a ground for MPs to begin the process of removing the President — impeachment.

Our Constitution does not expect any public officer to swear loyalty to the President. For example, a Cabinet Secretary must swear to be faithful to the Republic (not the President),  to  serve the people and the Republic (not the President) and be a “true and faithful counsellor to the President”. The loyalty of public officers is to the Constitution and the nation, not to an individual. The US situation is similar: The Constitution says that oaths of office are “to support the Constitution”.

Our Constitution mentions the “rule of law” seven times, from the Preamble to the duty of the Attorney General to “promote, protect and uphold” it, and the principle that “national security shall be pursued with the utmost respect for the rule of law”. And the President must “ensure the protection of human rights and fundamental freedoms and the rule of law”.

Our Constitution was designed under the influence of a profound distrust of power and those who exercise it. It is unfortunate, perhaps, that it gives a President so much power over appointment and dismissal of the heads of the police and the NIS. But there are many requirements and principles that hedge even these presidential powers. 

The rule of law, the requirements for fair procedures, the prohibitions on conflict of interest, the requirements for public openness — like giving reasons — and the limitations on the powers of the President, even if not enough, should all, if properly applied, make it hard for something such as Trump-Comey to happen in Kenya.

But there have been changes to the law, actual and threatened, making it easier for the president to control, and even dismiss senior security services officers.  It is up to Kenyans and their democratic institutions and their courts to ensure that the constitutional limits are respected.

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