KATIBA CORNER

How to impeach a president or governor

At least two-thirds of the Assembly must support the impeachment motion for it to go to the Senate.

In Summary

• In 2013, the County Assembly passed a resolution to impeach him, proceeded with the impeachment, and the Senate convicted him.

• Three other governors have been impeached by their assemblies, but not convicted by the Senate, basically because the assemblies failed to prove sufficiently serious misconduct.

Embu Governor Martin Wambora
Embu Governor Martin Wambora
Image: FILE

Much of the world’s (mostly horrified) fascination with President Donald Trump has a new element: The attempt to impeach him.

The procedure of impeachment came (like much of the US Constitution) from the constitutional practice of the UK.

Impeachment there played a role in the tensions between Parliament and the monarch, as democracy gradually emerged in the 14-19th centuries. It took the form of a criminal prosecution, by the House of Commons before the House of Lords as the court. The accused were usually ministers appointed by the Monarch. “Impeachment” meant something close to “prosecution”.

 

The drafters of the US Constitution adopted the procedure. It applies to “all civil officers of the United States”, including Cabinet Secretaries and Federal Judges. The penalty for anyone convicted was removal from office, not fines, or worse as in the UK.

Ironically the UK has not impeached anyone since 1806, mainly because the development of the parliamentary system had made it clear that ministers were no longer accountable to the monarch, but to the elected government and parliament. But the US – like Kenya – does not have a parliamentary system. But in the US impeachment is mostly used against judges.

DONALD TRUMP

Six House of Representatives committees are inquiring into various allegations against the President. The main issue is the allegation that he tried to persuade foreign countries (notably Ukraine) to act in a way that would prejudice his probable main rival in the 2020 presidential election.

The committee reports will go to the House Judiciary Committee which would draw up the charge sheet, as it might be called in a criminal case. The whole house would vote on whether the impeachment should proceed. Three elements go into this decision: The first does what the President is alleged to have done amount to “high crimes and misdemeanours” (the expression is very vague). Second is there enough evidence to support the allegations and third is the political element: And the Democrats (not Trump’s lot) dominate the House.

A trial should follow in the Senate presided over by the Chief Justice, with the Senators being jurors (though it is not clear what would happen if the Senate just did nothing). Apparently there are no clear rules of procedure, though presumably the Chief Justice has a clear idea about this.

 

The decision is made by a vote of the Senators. It requires two-thirds of them to convict. Republicans dominate the Senate.

 

The political element in all this is accepted, and the courts would not interfere.

Impeachment proceedings against Presidents have been rare and none has succeeded – either because they resigned to pre-empt the process (like Nixon) or because they were acquitted by the Senate (like Clinton).

KENYA

Our Constitution speaks of “impeachment” only in connection with the President and Deputy President because they are the only officers whose removal involves Parliament. They can be removed only for “gross violation” of the Constitution or of any other law; if there are serious reasons for believing that they have committed a crime; or for “gross misconduct”. These grounds are not much more precise than those in the US Constitution.

At least two-thirds of the Assembly must support the impeachment motion for it to go to the Senate.

The Senate may set up a special committee to investigate the charges (otherwise the whole house would do so). The President must have a chance to put his case to the committee or the whole House. The final decision is by the whole Senate. Again a conviction requires a two-thirds majority.

In Kenya, it is more likely that parliamentary Houses will be presidential supporters because all elections are on the same day –whereas in the US there are mid-term elections that sometimes shift the balance of support, as is the case in the House of Representatives now.

A successful presidential impeachment seems even less likely here than in the US.

And our courts might interfere to ensure a fair trial.

The County Governments Act extends the procedure for removing a President to governors. A curious difference is that to remove a governor, only a majority of all the senators is required.

Both Houses of Parliament include the procedure for impeachment in their Standing Orders. Comparing these with what happens in the US suggests that a ridiculously short time is allowed for this in Kenya. For example, the Senate committee must decide within 10 days whether the charges against a President are justified. When Bill Clinton was impeached, the Senate hearing took 36 days. Surely, there can be no quick fix for such an important matter?

WHY HAVE IMPEACHMENTS OF GOVERNORS NOT SUCCEEDED? 

The most striking cases involved Embu's Governor Martin Wambora. In 2013, the County Assembly passed a resolution to impeach him, proceeded with the impeachment, and the Senate convicted him.

The courts first decided that they should not take the “hands-off” approach of the US courts. This is not just something to be left to politics.

The High Court decided that both bodies had behaved unconstitutionally and that the removal of the Governor was invalid. The Court of Appeal broadly agreed.

Wambora remained in office.

Undeterred, the County Assembly tried again. Again, the Senate convicted. Again Wambora went to court. He had worse luck in the High Court this time. But the Court of Appeal disagreed. Again, his removal was unconstitutional.

One judge commented, “Governors who are popularly elected by the majority voters, who discharge their duties satisfactorily and adhere to the Constitution and the law, ought not to be in office at the mercy of the County Assembly. That is not what is intended by the Constitution.”

Three other governors have been impeached by their assemblies, but not convicted by the Senate, basically because the assemblies failed to prove sufficiently serious misconduct.

SO, HOW TO GET AN IMPEACHMENT CONVICTION 

From the Senate and court decisions we can draw some lessons.

  1. Make sure that the complaints are sufficiently serious to be “gross violations”. The courts have given a lot of guidance on that. For example, in Wambora I the Court of Appeal said it “includes violation of the values and principles enshrined under Article 10 of the Constitution and violation of Chapter Six (Leadership and integrity) of the Constitution; or intentional and/or persistent violation of any Article of the Constitution; or intentional and blatant or persistent violation of the provisions of any other law.”
  2. Make sure that the evidence is strong – not necessarily as strong as courts require in a criminal case, but still convincing.
  3. Particularly, make sure that the evidence shows wrongdoing by the Governor (or President) personally.
  4. Give the accused officer a clear statement of what is alleged against him or her.
  5. Give the accused officer the chance to put his or her own side of the story – the defence –before both the impeaching National or County Assembly and the Senate.
  6. Ensure there is a genuine - not a token - opportunity for public participation in the decision at the County (or presumably the National) Assembly level.
  7. Be careful that there is no sign of bias on the part of the deciders. What matters is whether a reasonable person looking on would think there was bias. So to have the same people on the Senate committee for the second Wambora trial as for the first gave the impression of bias – that they had made up their minds already the first time round.
  8. Don’t carry on the process against court orders. The High Court said a process done in deliberate disobedience to a court order was a nullity – a nothing. One court commented, “The developing trend in our country where parties to litigation appear to be choosing which court orders to obey or disobey must be stopped in order to build the public confidence in the rule of law”.

It is not clear that the Senate has fully followed this guidance in the current impeachment trial of Taita Taveta Governor Granton Samboja.