The unsuccessful attempt to remove Agriculture Cabinet Secretary Mithika Linturi from office through impeachment raises numerous political and constitutional questions.
The first question relates to its political dimension; what is the political value of an impeachment which has no credible chance of success on its technical merits?
What effect does it have on the public’s view of the integrity of our governance when allegations, which in the public’s view are believable, and which obviously demand political accountability, are declared unproven for failing to meet the legal thresholds required by law?
Does it not make an unnecessary mockery to our governance processes and lead to further loss of public faith in accountability processes? Why take Kenyans through these dramas, which promise much, but are ultimately “hot air” with entertainment value at best?
By now Kenya has established, through Senate hearings on governors’ impeachments and decisions by courts, especially the Wambora cases, the threshold for “violation of the Constitution” and “gross misconduct”, which must be proved for a successful impeachment. It therefore makes no sense for movers of impeachment motions to present cases that have no chance of success.
CS Linturi’s case was so poorly framed, with no nexus provided between the impugned acts and the Cabinet Secretary, that no reasonable tribunal, boosted or unboosted by envelopes in parliamentary toilets would have found that the threshold had been met. I have no doubt that had Parliament removed the CS from office, the facts depended on were so without weight that such removal would have been set aside by any reasonable court.
A related political question: how would a President appear politically if he looked unwilling or unable to fire their CS leaving Parliament to do the firing? Related to these political questions is a constitutional one. Removal of office of CSs is covered by Article 152 of the Constitution.
For some strange reason, the framers of our Constitution chose a method of removal of appointed officers akin to that of elected officials. The process through which Cabinet Secretaries are removed is similar to the process used to remove the President, governors and their respective deputies.
One can understand requiring such high thresholds and procedural safeguards for removing an elected officer. Removal by impeachment of elected officials is an affront to the democratic franchise, where one elected by millions can be removed from office by less than 200 legislators.
Where our Constitution loses it is when it requires the same substantive and procedural safeguards for appointed officers who serve at the pleasure of their appointor!
One of the absurdities of this removal by impeachment for Cabinet Secretaries is that the failure of the impeachment motion is no guarantee that CS Linturi will stay in office. His appointor can still decide to fire him, Parliament’s view notwithstanding.
What would have been more prudent is for the Constitution to provide for the passing of a vote of no confidence in a Cabinet Secretary by Parliament if the House was convinced that the Cabinet Secretary was either culpable or required to take political responsibility.
Such a process would then leave it to the President, as the appointing authority, to determine the political value of the Cabinet Secretary in view of the position taken by Parliament. This may be one of the areas we will need to review if the Constitution ever comes up for amendment, so we remove these impeachments of appointed officers and allow their appointors the latitude to decide what to do with the degenerate among them.
I say this knowing Kenyans love to hate their leaders and therefore love the drama that accompanies impeachments when their leaders are made to climb from their lofty echelons and eat humble pie.
In my view, we should reserve this drama of impeachments to only elected officers, and officials that have security of tenure like judges or members of Constitutional Commissions. Even then, movers of motions of impeachment must spare us weightless motions grounded on hearsay, rumour and conjecture.
This only leads to a loss of faith in the law. Needless to say, it is exceptionally difficult to prove culpability the higher the office one holds. That, however, is our Constitution. Let us spare Kenyans these hot air and wild goose chases.
-Writer is an advocate of the High Court
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