Our laws have no place for frivolous impeachments

One of the most important powers given by the Constitution to our legislators is the power to impeach members of the Executive. The framers of the Constitution were informed by our history, where the Executive had run roughshod over the whole country, unaccountable and untouchable. In our previous dispensation, impeaching the President was a suicidal act, as it would lead to a fresh election not just for the President but the MPs. As for members of Cabinet, the President had unfettered discretion in hiring and firing his team, and could routinely ignore any votes of no confidence from the House.

In our current Constitution, matters are reversed; the President and the Governors can now be impeached without necessitating a joint election. As for the Cabinet Secretaries, the passage of a vote of no confidence now obliges the President to fire a Cabinet Secretary. 

The new Constitution however recognised that the impeachment process was, as far as the President and Governors were concerned, a “subversion” of democracy. These officials had been elected by millions of voters. Consequently to send them home without involving the voters was a power to be exercised in the most extreme of circumstances. Consequently the Constitution set a very high threshold for impeachment, replicating the concept of “high crimes and misdemeanours” in the American constitution.

For a Governor or President to be impeached they must have committed “gross” violation of the Constitution or “gross” misconduct. In a sense, it is not even enough to show a violation of the Constitution or misconduct, it had to be the “gross” kind. The same is true of members of Cabinet. Having been appointed by the President or the Governor, it is unreasonable for another arm of government to fire them except in the most extreme of circumstances. Consequently the threshold for the vote of no confidence is placed quite high, restating the “gross” violation language.

The on going impeachments and votes of no confidence raise significant concern in the casualness with which these constitutional standards have been applied. In the two impeachments of Governors that have so far been concluded by the County Assemblies of Embu and Kericho, the matters complained off were at best administrative misdemeanours hardly rising to the “gross” violation standard.

It was clear in both cases that the purported allegations were not the focus of the “impeachers”; other considerations informed the decision to impeach.  This casual exercise of a constitutional power is being played out in the National Assembly where a curious impeachment of CS Ann Waiguru has been commenced with surprising enthusiasm.  I say curious because anyone who has dealt with CS Waiguru knows she is one of Uhuru’s best performing ministers, handling with unusual efficiency difficult dockets including devolution, public service, youth, gender, planning and even disaster management. The most one can accuse her of is  impatience with non-performers; though knowing Kenya, being a competent successful woman is a malady!   Curiously, the motion filed by the Hon Linturi on the matter is fairly casual on the charges it frames against the minister. The “gross violation” of the Constitution alleged is that the minister intimidated two public officers and thereby led to their “unfair dismissal”. Amazingly, one of the officers was a Presidential appointee who in the exercise of his powers, the President, not the Minister, relieved of his duties. 

The second purported sacking is actually an interdepartmental transfer of an officer from the Ministry of Youth to the Ministry of Sports, a process that routinely occurs in the public service.  Indeed the transfer notice in which former Director Rugut is transferred contained numerous other officers and is signed by the Chief of Staff not the Minister! No charge could be lower on the constitutional threshold than this one.

Clearly there are high octave and personality politics at play in this matter. Hon JB Muturi must not dilute the essence of the vote of no confidence process by allowing this on the floor. Were the House to proceed on such a matter on the basis of political and “put her in her place” considerations, it would defeat the very essence of constitutional responsibility and violate the very constitution every member took an oath to defend.