Impeachment was a mechanism created by the English Parliament in the 14th century for removal, and perhaps punishment, of senior officers of state. It was a way of dealing with important people protected by the King, and part of struggles between the monarch and the people (though the aristocracy rather than the “ordinary people”).
The House of Commons impeached (prosecuted) the officer before the House of Lords. When the United States of America developed its constitution they drew very much on what they knew of the constitutional practice in Great Britain. Having opted not to have a monarch, but a President with a four-year term, they decided they needed the possibility of removing them.
Impeachment under the American constitution is possible for the President and all other “civil officers” for “treason, bribery, or other high crimes and misdemeanors”.
No procedure is laid down but, if the President is the one being tried, the Chief Justice presides. And, for impeachment to succeed, two-thirds of the senate must vote for it. Being convicted means removal from office and being barred from holding any future federal public office. When impeachments took place in Britain, the House of Lords was a court, not only a law making body. So there was no question of someone aggrieved by an impeachment being able to go to some other body to complain about it. They had already been condemned by the highest court.
The UK, incidentally, was using impeachment rarely then, and has never had a complete impeachment trial since 1806.
How is it in our constitution?
Many other countries have introduced impeachment processes in their constitutions. Sometimes it is for presidents only; in others it is applicable more widely. Parliamentary systems often have it for presidents only – who usually have limited powers. Ireland and India are examples.
Quite a number of parliamentary countries have irremovable monarchs as head of state. Other officers, particularly Prime Ministers, can be removed more simply – by a vote of no confidence that requires no formal trial process. South Africa provides for both impeachment and vote of no confidence for its President.
Kenya followed that trend in its constitution drafts, providing for impeachment of only the President or vice president (or deputy president) in all the drafts, and in the constitution as adopted. (The County Governments Act introduced the term for County Governors).
Can courts overturn an impeachment?
It is well known that impeachment in the US is treated as a “political question” and not one for the courts. This was not clearly decided, and by the Supreme Court, until 1993, in a case involving a judge. In South Africa, however, issues arising out of presidential impeachment efforts do go to the Constitutional Court.
It’s clear that the way impeachment works is very different from what the American constitution framers imagined. They thought members of Congress would use their own judgment. Political parties did not really exist. But now it is clear that party really decides presidential impeachment trials. Here the situation would be similar - party and ethnicity of course being closely linked. I do wonder whether constitution makers think carefully enough about this history.
What does our constitution say?
For Kenyans, the issue is not what the US does but what our constitution says. In the various Kenyan constitution drafts there was a surprising variety of relevant statements. The first draft in 2002 would have had the committee in what we now call the Senate chaired by the Chief Justice. This was perhaps an indication that the drafters did not intend to impose any further legal requirements on the process. (The US Supreme Court took this approach in the case about impeaching a judge.)
But this element was removed in the National Constitutional Conference (Bomas) draft. One could argue that this removed an obstacle to the courts overseeing the process.
The Committee of Experts was initially clearer. Its first draft said that the Supreme Court cases about presidential impeachment would go straight to the Supreme Court. This survived into their second draft. However, the Parliamentary Select Committee (which changed the system of government to an American one) removed the Senate from the process leaving impeachment to the National Assembly alone. (This was the committee that also wanted the Senate to be the “lower house”). It also put the CJ to chair the impeachment proceedings.
Extraordinarily, the PSC left the provision about the Supreme Court dealing with presidential impeachment cases – that court whose President would have chaired the National Assembly proceedings. The CoE felt compelled to accept many PSC recommendations about politicians’ powers. But they did change a number of provisions that they thought went too far or were now inappropriate. They restored the role of the Senate, removed the provision about the CJ, and removed their own provision about the Supreme Court and impeachment.
Reading the constitution in isolation one might wonder whether the CoE (i) intended the Judiciary to have no role in connection with impeachment, or (ii) assumed they would - just as they are able to hear challenges to anything else Parliament does like making law, or (iii) deliberately decided to leave it unclear, to be resolved when the issue arose. Constitution makers do sometimes deliberately decide not to decide something.
There is one small indication in the constitution. The CoE had introduced a provision that removal by a tribunal of the President for physical or mental incapacity is “final”. They could easily have said something similar for impeachment, but did not – arguably pointing to the possibility of the issue going to court.
In their Final Report, the CoE did not mention that they had removed the exclusive jurisdiction of the Supreme Court. They did say they had removed the CJ’s role because the Judiciary should “remain outside the impeachment process because it may be required subsequently as an avenue of appeal.”
One might still ask: if they were so sure that impeachment cases should go to court, why did they not make it 100 per cent clear?
Is it a good idea for impeachments to go to court?
I first thought the answer to this question was obvious. The constitution drafters had intended that the ultimate decision makers could be the courts for any legal issue. However, one American writer suggests that under their constitution as applied, removal of a President might be possible if that person was “deeply unpopular” – but, if the case could be taken to court, removal might not be possible on such a basis. This makes impeachment more like a vote of no confidence.
This got me thinking. It is my impression that most people would support the idea that the courts can be approached to decide if a governor’s impeachment process was constitutional. The procedure for removing a governor is not in the constitution, so, arguably, the position about court oversight need not be the same as for president or deputy. We should remember that court oversight of an impeachment is not to protect just the rights of the impeached but also those of the voters whose candidate is being kicked out.
There is another important factor – a successfully impeached and removed president, DP or governor cannot hold public office in future if the removal was for reasons of his/her having subordinated the public interest to personal benefit (to over-simplify). This does mean the process must be fair. Removal of a Kenyan president by impeachment is highly unlikely.
I did wonder whether if it did occur this would so clearly indicate such widespread dislike for the president that it ought to remain immune from court interference. And imagine the chaos if a successfully impeached president took the issue to court. Just a thought!
Jill is a retired law teacher and member of the Katiba Institute Board
The author writes in her personal capacity
