Senate sealed Wambora’s fate but he may not be out just yet

By Charles Kanjama

One of the dramatic moments of political history that comes to mind is the impeachment of Andrew Johnson in 1868. Andrew Johnson, who succeeded Abraham Lincoln as American President upon the latter’s assassination, was accused of abuse of office and violation of the Constitution arising from his decision to sack his Minister of War due to policy differences. The impeachment vote succeeded, resulting in a dramatic Senate trial followed by a vote on whether to convict and remove the President from office.

Interestingly, it was Johnson’s own Republican party that engineered the impeachment process, and provided 35 of the 54 Senators who voted to convict.

Twelve Democratic Senators opposed the impeachment, and were joined by seven Republicans, just enough to avoid the two-thirds threshold for conviction by one vote!

There was less drama this past week after Embu Governor Martin Wambora became the first governor to be impeached and then convicted after a Senate trial on violation of the Constitution, breach of the Procurement law and of public finance management laws. It was a triple whammy that finally brings the character and power of the Senate to the fore. Wambora was convicted by a large plurality of Senators, with only one ‘No’ vote and one abstention of the forty Senate delegations that voted.

But first, some housekeeping. Contrary to some media reporting, impeachment is not the same thing as conviction. The best synonym for impeachment is indictment, or arraignment. Impeachment refers to the first formal decision to commit a senior member of the Executive to trial over charges stemming from violation of a country’s laws, and whose end product may include removal or other disciplinary sanction.

So Wambora was impeached by the Embu County Assembly and not by the Senate. The County Government Act requires the Senate, upon receiving notice of the impeachment, to conduct post-impeachment proceedings in the form of an impeachment trial or inquiry, and then to vote whether to convict or acquit the impeached official. The impeached official has a right to be heard during the said process, which marries the judicial and the political, and is therefore ideally designed to be undertaken by the Senate.

According to the Constitution of Kenya, upon Wambora’s conviction, his deputy Dorothy Nditi takes over, thus becoming Kenya’s first female governor, and she is entitled to serve for the remainder of Wambora’s term. Dorothy will also be entitled to appoint a new deputy governor, subject to the approval of the Embu County Assembly.

The key legal challenge to the impeachment process of Embu’s County Governor is the existence of court orders stopping the impeachment process. My argument, which I’ve previously made, is that the court does not have authority to injunct Parliament, neither the National Assembly nor the Senate, due to Parliament’s legal immunity, though it may declare completed Parliamentary acts unconstitutional. So Parliament is entitled to uphold its powers and proceed with its constitutional mandate despite court injunctions.

However, this immunity does not extend to county assemblies, meaning that a court can technically injunct a county assembly from conducting certain business pending determination of court process. We support the reasoning of the US Supreme Court in the 1993 case, Nixon v United States, namely that the Court should be wary of intervening in any impeachment process, which has both political and judicial aspects, unless there are glaring failures to comply with clearly-stated constitutional guidelines. The Court should not inject its procedural preferences to restrict the powers of Parliament, or even county assemblies.

Yet it is unarguable that the High Court injuncted the Embu County Assembly, which it had power to do, and the county assembly proceeded to impeach Wambora in disregard of a valid and subsisting court order. The impeachment stream that reached the Senate was therefore infected with illegality, and while the Senate was entitled to proceed as it did, it runs the risk of having the Court declare its completed act unconstitutional and reinstating Wambora to office. So expect the High Court to enter the fray this week.

—The writer is an Advocate of the High Court of Kenya