Impeachment is legal and useful in a democracy

Former Nairobi Governor Mike Sonko (left) with his Private secretary Ben Mulwa (centre) and legal team at the Senate Assembly during his impeachment debate. [Elvis Ogina, Standard]

Lawyer Kamotho Waiganjo in his column on The Saturday Standard of July 16th, 2022, faulted the impeachment process of governors and subsequent trial in the Senate as undemocratic, holding that recall election would be better.

Mr Waiganjo went on to urge that future constitutional amendment initiatives (what he calls the next BBI round) should, consider our ‘constitutional architecture by requiring recall elections for governors and outlaw impeachment.’

I take a different view. Impeachment is a valid democratic process and serves constitutional purposes. One of America’s founding fathers Benjamin Franklin is quoted as saying that the only recourse for abuse of power will be assassination if we don’t allow for (presidential) impeachment. Impeachment has a prophylactic effect and serves as a democratic vent.

Impeachment avails a platform for democratic expiration when it allows for removal of an elected representative and in that manner, avoid the fiendish path in form of assassinations if civil and democratic chimneys are not available.

Impeachment is a constitutional and democratic device to deal with powerful leaders who jump the rail. In ancient Greece, Athenians used ostracism, the exiling of a citizen for up to 10 years by the Assembly for any reason. The Romans empowered magistrates (censors) to expel senators found guilty of illegal and corrupt conduct. In traditional African societies, kings were disposed of when found to have broken the law.

The late Ghanaian scholar and economist, Prof George Ayitteh in a paper titled ‘Traditional Institutions and the State of Accountability in Africa’, gives an account of Kings of the Dahomey kingdom being removed from office when they failed to perform their spiritual functions, this custom emanating directly from the belief in the unity of the king and kingdom, such that the prosperity or failure of either may be regarded as that of both, and a king could thus be held responsible for conditions in the kingdom. 

De-stooling, a common action in many traditional African societies, served the purpose impeachment serves today. Among the Akan people of Ghana, a chief could be de-stooled (removed from office) if he broke the community oaths or taboos.

There is no denying that the impeachment processes in Kenya have been fraught with challenges. The systemic challenges are a reflection of Kenya’s wolverine politics. Kenya’s situation is special since we are laden with the anvil heavy burden of a morally bankrupt, shortsighted and corrupt political elite who have weaponised impeachment.

The writer is an advocate and adjunct lecturer at the University of Nairobi. [email protected]