KATIBA CORNER

Impeachment: Can Trump, Kenyan governors stand again?

In Kenya, Article 75 ends by saying that anyone who is removed for these reasons “is disqualified from holding any other State office”.

In Summary

• Like Kenyans, apparently many Americans use the word “impeachment” to apply to the whole process, but this is inaccurate.

• Impeachment is just beginning the process before the Senate.

US President Donald Trump
US President Donald Trump
Image: REUTERS

This is an interesting question but to begin, let’s stick with President Donald Trump.

The House of Representatives may impeach public officers before the Senate. It applies to “all civil officers of the United States”, including Cabinet secretaries and Federal Judges.

Just to get the terminology right, like an ordinary criminal trial, somebody (in this case the House of Representatives) prosecutes (impeaches), another body (in this case the Senate) decides whether the person impeached is guilty. If so, a penalty is imposed.

Like Kenyans, apparently many Americans use the word “impeachment” to apply to the whole process, but this is inaccurate. Impeachment is just beginning the process before the Senate.

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

What is the punishment for a president found guilty following impeachment?

The US Constitution says (Article 1, Section 3): “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The last bit simply clarifies that being impeached does not mean means that the person cannot also be prosecuted for a crime under the ordinary law.

The first bit has to be read along with Section 4 of Article 2: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. Together these sections are taken to mean that the punishment of removal is automatic, but disqualification is not.

Trump is being impeached, again, but cannot be convicted and removed before his term expires on Wednesday. And the Senate would have to vote separately on whether to disqualify him in the future. And they would do this not by two-thirds (which is necessary to convict) but by a simple majority – meaning more than half of those who vote.

So far so reasonably clear – though American lawyers are not 100 per cent sure what “any Office of Honor, Trust or Profit under the United States” covers.

Things are much more confusing when we come to Kenya.

PRESIDENTS AND GOVERNORS IN KENYA

Our Constitution uses the word “impeachment” only about a president or deputy president. And it makes removal automatic. At that point, it does not indicate that any other penalty applies to a successful impeachment.

The County Government Act uses “impeachment” about removing a governor – which may be done for almost exactly the same reasons as a president (for governors the phrase “abuse of office” is added). Those grounds are “a gross violation of a provision of this Constitution or of any other law; ….serious reasons for believing that the President has committed a crime under national or international law; or for gross misconduct”.

How about disqualification because of removal?

This is where things get difficult.

There is a slightly puzzling Article: 75. It appears in the Chapter on Leadership and Integrity, which applies to all state officers. State officers include elected officers (President, governor, MPs, senators and MCAs), and appointed officers such as judges, commissioners, CSs and PSs).

Article 75 says that state officers must behave in a way that avoids any conflict of interest between personal interest and public duty and demeaning the office the officer holds (to summarise).

Anyone who does any of these, plus a few others, must be subject to a disciplinary procedure and may be dismissed or “otherwise removed”. The few others include illegally holding a foreign bank account and being a dual citizen.

Article 75 ends by saying that anyone who is removed for these reasons “is disqualified from holding any other State office”. (At this point I think any lawyer would say, “Ouch – what does that mean? Could they not have any other state office, but it would be OK to be re-appointed or elected to the same state office?”)

Does this Article apply to all state officers?

This depends on whether there are “disciplinary procedures” that apply to them. The word “disciplinary” is used in the Constitution only about civil servants, police etc. Not about state officers.

But of course all state officers may be removed from office for some reasons and those reasons could generally be called disciplinary - they are removed because they have done something wrong.

But if “disciplinary procedure” means only the sort of process that civil servants go through (with formal hearings and so on) maybe no removal process for state officers quite fits. But that would mean that Article 75 is meaningless – but it is a cardinal principle of constitutional interpretation that no bit of the Constitution can be held meaningless.

Maybe presidents and governors would say, “We are impeached not disciplined”. But successful impeachment leads to removal. And it can only be done for some misbehaviour. So why would it not be discipline, just because it has a fancy name?

Sometimes we say that something general (like Article 75 about all state officers) does not apply if there is a separate specific provision about one situation. So since there is a clear procedure for removing presidents, does this mean that Article 75 does not apply to them? But the procedure for removing most other state officers is also indicated in the Constitution. Or maybe it applies to governors, because the procedure for removing them is not in the Constitution but in the County Government Act. That would be a most peculiar outcome.

Similarly, the Constitution says something about disqualifications for office for all elected state officers, including governors. Does that mean Article 75(3) applies only to appointed state officers? But it could easily have said so.

FAIRNESS

Some newspaper columnists have looked at what they think would be just.

It would not be fair to prevent someone ever being a state officer again because he or she had once been removed for misbehaviour. Or it is unfair to the people to prevent them voting for their choice even if that person has once been removed from office. Or – in the case of impeachment – this is a political process not a legal one. So it’s not right that it could bar someone for ever for public office.

A quick response to each argument. Removal by any process is generally to be only for really serious misbehaviour. However, I must admit that being removed because you honestly did not realise that you had a second nationality does not seem a sin great enough to justify being debarred from state office for life. For other behaviour, one has less sympathy. If someone has achieved state office and used it to benefit him or herself, why should we really feel sorry for them, especially for those most senior of elected officials, the President and governors?

Every limitation on the right to stand for election limits the public’s choice. Are we really saying they have the right to elect every corrupt idiot they choose? Or there should be no limit on presidential terms?

As for the “political process”, it is possible in Kenya to go to court to challenge conviction on impeachment charges. Embu Governor Martin Wambora did it twice and succeeded.

The courts require the various legislative bodies to behave fairly. In the US, impeachment is assumed to be political and the courts will probably not interfere. But there, removal could still mean disqualification for life.

This nightmare of an Article (75) appeared first in the Bomas draft – but was clearer because it applied to any state officer removed for breach of the leadership and integrity provisions. A pity it was not left clearer.

The MPs in Naivasha in 2010 tried to make it apply only to public servants (not to themselves), but the Committee of Experts resisted.