Impeachment: Separating truth and lies

NAIROBI: Since the onset of devolution after the first General Elections held under the Constitution of Kenya 2010, there have been several impeachment attempts both at the national and county levels.

While the process of impeachment has the elements of a criminal process, it is basically a political process designed to deal with the misconduct by high ranking public officers.

Impeachment of public officials can be traced to medieval England where impeachment of the King’s ministers was used as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country).

However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).

In the United States, impeachment of public officials is provided in the Constitution. It is said that the Framers of the Constitution provided for impeachment so as to encourage

Executive officers to perform their duties with honor, and, used as a last resort, impeachment itself would be effective to remove those who betray the interests of their country.

The Framers placed particular grounds of impeachment in the Constitution because they wished to prevent impeachment from becoming a politicized offense, as it had been in England.

The grounds agreed upon were treason, bribery, high crimes and misdemeanor. Note that misdemeanor in the 1700s does not attach the same meaning that it has today.

Nonetheless, one of the founding fathers of the United States, Alexander Hamilton, warned that during impeachment proceedings,

it would be difficult for Congress to act solely in the interests of the nation and resist political pressure to remove a popular official.

The Framers believed that the Senate, elected by the state legislatures, would have the requisite independence needed to try impeachments. The Framers also mandated a supermajority requirement to militate against impeachments brought by the House for purely political reasons.

In the United States, there have been less than ten impeachment attempts since their Independence while back here at home there have been probably more than twenty impeachment attempts. At this rate, there may be calls to set up an Impeachment Division at the Judiciary.

What, then, is an impeachable offense in Kenya? The common grounds provided for the various categories of public officers are gross violation of the Constitution, where there are serious reasons for believing that the officer has committed a crime under national or international law, and gross misconduct. Unfortunately we are not told what the thresholds are so as to meet the grounds set out above.

The Court of Appeal in Martin Wambora’s case attempted to provide the threshold for gross violation of the Constitution.

It noted that such a threshold is above a balance of probability but below reasonable doubt. It also stated that there must be a nexus between the “impeachee” and the alleged gross violations of the Constitution or any other written law.

The impeachee currently in vogue is Cabinet Secretary Anne Waiguru. According to media reports the Keter motion for impeachment revolves around financial impropriety at the National Youth Service. The question is whether the facts alleged meet the thresholds set by the Wambora Case.

As far as public finance management is concerned, it is the principal secretaries who serve as accounting officers and are thus are primarily responsible for safeguarding public monies. Therefore, in my opinion, Anne Waiguru as a Cabinet Secretary does not meet the nexus requirement as set out by the Court of Appeal.

Another issue that needs to be grappled with is the commission of crimes under national or international law. How does Parliament deal with such given that investigations are conducted by the other institutions such as the Police?

Is it prudent for Parliament to move under such a ground while investigations are still being conducted by the requisite bodies? I think not.

The way forward should be to expound on the impeachment grounds set out under Article 152 of the Constitutions through the Standing Orders.

This way, Parliament can set out criteria or thresholds under which a Cabinet secretary can be impeached objectively.

As it is, an impeachable offense is whatever a majority of the members of Parliament considers it to be at a given moment in history.

This should not be the case. Impeachment must be approached with the utmost solemnity.

Indeed, Parliament should consider and approve motions of impeachment only for such acts as have, in its judgment, so seriously threatened the integrity of governmental processes as to have made the Cabinet Secretary’s continuation in office a threat to the public order.

Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history.