EXPLAINER: When and how a President can be impeached

The Law Society of Kenya has threatened to sue the president if he fails to respect the Judiciary.

LSK President Eric Theuri said lawyers may be forced to mobilise support to impeach the president if he fails to respect the rule of law or act in gross violation of the Constitution.

“The Constitution allows us to approach the High Court when there is a threat to violation of the Constitution to consider whether the current scenario raises enough threats of violation for the Constitution for us to move to court and seek the declaration that the President has violated the Constitution...as you know one of the grounds for impeachment is a violation of the Constitution,” Theuri said.

The LSK’s statement came even as the president continued to accuse courts of frustrating his development agenda.

“Naambia korti hakuna vile tunaweza kusimamisha mpango kama hii ya housing...mpango ambayo iko kwa katiba, manifesto na imepitishiwa sheria….halafu mtu anasema tusimamishe mradi sababu ya mambo yake ya kibinafsi hawa vijana 120,000 nitawapeleka wapi,” Ruto said.

But what exactly entails the impeachment process of a President? 

According to the Constitution of Kenya 2010, a president can only be ousted by way of the Parliament.

There are two grounds for the removal of a Head of State.

By Impeachment 

This is done if a legislator, supported by at least a third of all MPs, moves a motion for impeachment on three grounds.

They include a gross violation of a provision of the Constitution or any other law, serious reasons for believing that the President has committed a crime under national or international law or gross misconduct.

If the motion is supported by at least two-thirds of all the members of the National Assembly, the Speaker will relay the information to his Senate Counterpart within two days.

Within seven days of getting the National Assembly's resolution, the Senate Speaker will convene a meeting of the Senate to hear the charges against the President.

The Senate is at liberty, by resolution, to appoint a special committee comprising 11 senators to investigate the matter.

The special committee is tasked to investigate and report to the Senate within 10 days on whether it finds the allegations against the President to have been substantiated.

The President has the right to appear and be represented before the special committee during its investigations.

In the case that the special committee finds that the particulars of any allegations have not been substantiated, no further proceedings are to be taken under Article 145 in respect of that allegation.

If the special committee finds that the particulars of any of the allegations lodged before the President have been substantiated, the Senate will allow the President to be heard.

After this, the House will vote on the impeachment charges.

"If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the President shall cease to hold office," the Article reads.

Incapacity

According to Article 144 of the Constitution, this will be on grounds of either mental or physical incapacity hindering him from performing his duties.  

An MP, supported by at least a quarter of all members of the National Assembly can file a motion to have the President investigated on the aforementioned. 

If the motion amasses majority support, the Speaker of the House informs the Chief Justice within two days.

Within seven days after reception of the notice, the CJ or the deputy CJ is required to appoint a tribunal of three qualified medical personnel, an advocate of the High Court and one person nominated by the President. 

The latter can be nominated by a member of the family of the president or his close relative, in the case that the President is unable to. 

The tribunal is expected to inquire into the matter and report its findings to the CJ and Speaker of the National Assembly within 14 days.

Within seven days of receiving the report, the Speaker is to table the same before the House.

The report is final and not subject to appeal. If the report says the Head of State is capable, the Speaker will so inform the House. 

In the case that the report shows that the president is incapable of performing his legal duties, the House will vote on whether to ratify the report.

"If a majority of all the members of the National Assembly vote in favour of ratifying the report, the President shall cease to hold office," the Article concludes. 

In both cases, pending the outcome of the investigations, the President is to continue holding office.