Impeachment of elected officers undemocratic and open to abuse

Former Nairobi Governor Mike Sonko and his running mate Ali Mbogo celebrated at the IEBC offices in Mombasa County after Sonko was cleared to run for Mombasa Governorship.  [Kelvin Karani, Standard]

The Supreme Court decision affirming the lower court’s verdict that Sonko’s impeachment was lawful and justified did not come as a surprise.

Anyone who has listened to the court has noted that the Supreme Court generally affirms public interest cases that lower courts have unanimously decided. In any event, Sonko’s record as a public officer has been characterised by obvious breaches of Chapter Six, whose central tenet is not to demean the State office one holds.

Sonko’s tenure has been anything but. That said, the issue brings to the fore an aspect of our constitutional design that requires a rethink to be a true democracy. It relates to the process of impeachment of elected officials.

Since no impeachment proceedings have occurred against a president, I will discuss the case of governors, though the principle will apply to presidential impeachment. The typical governor is elected by an average 300,000 voters after a grueling campaign where they obtain a direct mandate of the people.

Unfortunately, our system then permits the elected governor to be removed from office through a decision by less than 50 persons comprising the Members of County Assembly and the Senate granted, the process is intended to be a tool of holding rogue governors accountable. But we all know impeachments are largely driven by motives external to accountability. Behind the allegations of misconduct are invariably disagreements about allocation of funds to the Assemblies or the ugly head of local or national politics.

In the Senate, where the matter is taken for final decision, politics plays a central role in the determination of the issue. So, a person elected by hundreds of thousands of people is sent away without their involvement or concurrence and without ensuring that these representatives’ decision is aligned to the electors’ wishes. While the law requires public participation before the County Assembly makes its decision, there is no threshold for such participation and in any case, it has no impact on the decision to be made by the MCAs.

In the Senate, where the removal occurs, there is absolutely no involvement of the public. The process is rushed through and in 10 days a hearing has occurred, and a decision made.  Interestingly, to remove Senators and MCAs, who were elected in the same manner as the governors, requires a recall election by the voters.

In the law that was declared unconstitutional recently, the MPs had put impossible barriers for them to be recalled but see no contradiction in the ease with which similarly elected officials are removed. Our impeachment provisions were copied from the US, which permits impeachment of its governors and president.

We however failed to recognise that the US president is not elected by popular vote but by electoral college and that, a failure by the electoral college to elect a candidate would consign the election of the president to the House of Representatives. A perusal of the US constitutional conference records shows that the constitution’s drafters expected the election to generally be determined by this House. It therefore makes sense that the same House was given the constitutional mandate to impeach.

Our officials are however elected directly, and it makes no sense that the people who remove them from office are not the ones who elected them. In the next BBI round, there is need to consider whether we should align our constitutional architecture by requiring recall elections for governors and outlaw impeachment.

We can then provide for other tools the representatives can use to hold officials accountable, short of sending them home. The current process is profoundly undemocratic and open to severe abuse, Sonko’s obvious case for impeachment notwithstanding.