By Kelvin Njuguna Mugwe
The happenings in the political scene in Kenya after the August 8 election have been historic, to say the least. Political hype has never been as divisive yet as interesting and intriguing as it is now. From the nullification of a presidential election, a first in Africa, to the intensive, bareknuckle and character assassination motivated campaigns, the political temperatures have never been higher.
The two protagonists, Jubilee and Nasa, having both undergone a seesaw of emotions, have reverted to exceptional chest thumping and hubris. The Nasa brigade has been drawing inspiration from the presidential nullification, which has gratified their belief that their victory was stolen. The Jubilee party on the other hand is encouraged by the impressive numbers it has in all other elective posts. The said numbers not only indicate that they have a solid majority in various seats, but they also relatively represent the whole of Kenya. The confidence and combativeness being exhibited by the two presidential contenders, has resulted in them uttering reckless and surprising statements, more so the President. In this piece, one such statement, where the President sensationally proclaimed that the Jubilee party would impeach Odinga within months were he to be elected, shall be interrogated. In addition to the statement appearing defeatist in nature, having been said in the early days of campaigns, it also provokes the mind as to the legality and practicability of it.
The impeachment of a sitting president derives its legal backing from the Constitution under Article 145. A reading of the Article reveals that the process is no meek task. Two essential elements suffice from the article; the need to have substantial parliamentary support and the satisfaction of the high threshold of grounds for removal. Both factors are key if there is to be a successful impeachment but with the former being more lucid as compared to the latter, which is extremely intricate.
Article 145 envisages three situations where support of a number of parliamentarians plays a role. The first is Article 145 (1) where a member of the National Assembly who intends to move a motion for the impeachment of a president ought to obtain support of at least a third of members. The second instance is under Article 145 (2). Under this situation, a least two-thirds of all members of the National Assembly are needed to approve the grounds for removal as enumerated under clause 1 of the Article. The matter is then forwarded to the Senate where the third instance arises. A committee comprising eleven members of the Senate is established to investigate accusations levelled against the president and prepare a report, which is then presented in the Senate and subjected to a vote. Article 145 (7) indicates that at least two-thirds of the members of the senate are needed to uphold the impeachment charge. The significance of numerical strength in parliament therefore, in executing an impeachment cannot be overstated.
With regards to the first stage where only a third of support is needed, there is no doubt whatsoever that the stage with flow seamlessly. However, it gets tricky after that even for the Jubilee party, which enjoys a solid majority, but not a super majority. With regard to the second and third stages, there needs to be support of at least 234 members out of 351 in the National Assembly and at least 44 of the support of members in the senate. Despite its numerical strength, Jubilee, even with the support of its affiliate parties, does not reach these heights.
The significance of marshalling numbers cannot be illustrated any better than the attempts to impeach South Africa’s President, Jacob Zuma. Scandal after scandal has afflicted his tenure and this has in turn invited no-confidence votes to be brought before Parliament, the latest being in August 2017. They have all spectacularly failed, thanks to the numerical strength enjoyed by his African National Congress (ANC) party. Though slightly different from the imagined Uhuru-led impeachment, the issue of numbers and meeting the limit set by the Constitution, makes such a task Herculean.
The second essential element that ought to be met as espoused under Article 145 (1) sets three grounds for removal: gross violation of a provision of the Constitution or of any other law, where there is reason to believe the president committed a crime either under national or international law or where there is evidence of gross misconduct. The first and the third grounds have something in common – both provide the standard of violation or misconduct should be ‘gross’. Therefore, it does beg the question, what constitutes gross violation or misconduct. The same has been legally interrogated by the Kenyan Courts. The case that stands out in this regard is Martin Nyaga Wambora & 4 others vs. Speaker of the Senate & 6 others 2014] eKLR.
The case was challenging the impeachment of Embu Governor Martin Wambora who was impeached by dint of Article 181 of the Constitution. Save for Article 181 (1)(d) which includes physical and mental incapacity as grounds for removal of a governor, the other sub-articles mirror the grounds set forth under Article 145(1). Therefore, what should be considered as gross arose as a gravamen of the case.
In describing the term gross, the learned Judges relied on the Supreme Court of Nigeria in Hon. Muyiwa InakoJu & Others v Hon Abraham Adeolu Adeleke S.C 272 0f 2006. To them, the word generally meant atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious, and shocking. All these words express some extreme negative conduct and thus a conduct that is the opposite of those cannot constitute gross misconduct. It was on this premise that the court stated that it is not every violation of the Constitution or written law can lead to the removal of a Governor as per Article 181; it has to be a gross violation. It went on to add that the removal of a Governor through impeachment should not be taken lightly and that it should not be used for ulterior motives. That is why in their view, the Constitution at Article 181 sets very high standards for removal of a Governor.
It is evident in this case that the test for removal of a governor is extremely high. It should be noted, however, that he does represent one county unlike the President who represents all the 47 of them. Under Article 131, the President of the Republic is bequeathed with immense authority that casts a shadow on the power enjoyed by governors. Senior Counsel Ahmednasir Abdullahi, while making his submissions in the 2013 presidential petition in 2013, went as far as saying the president is given the mandate to “rule and reign”. It is undeniable that the President wields power of monumental proportions, despite the fact the 2010 Constitution immensely watered down those powers. Therefore, if removing the governor is no walk in the park even where there are constitutional violations, a tedious, sophisticated and probably impossible task awaits those who wish to remove the president. The test for what is gross is rocket high making the satisfaction Article 145 (1) (a) and (c) absolutely difficult.
There is no joy either under Article 145 (1) (b) for potential movers of an impeachment motion. The president can be removed by dint of this sub-article if he commits a crime either internationally or locally. It is very interesting that the greatest beneficiaries of the difficulty in enforcing this very sub-article, are the current President and his deputy. The two, alongside other four, have had cases either not confirmed or withdrawn at the International Criminal Court (ICC) based in The Hague. The Court is the epitome of the conducting of trials of crimes against humanity. Despite the magnitude and severity of the case, the same did not bar then Deputy Prime Minister Uhuru Kenyatta from retaining his post. It further did not bar him or his deputy William Ruto from successfully running for the presidency even after cases were instituted in local courts to bar them from vying. It further did not prevent them in any way whatsoever from running the government even after Uhuru Kenyatta became the first president ever to appear in the court as an accused. In abstract, the doctrine of being innocent until proven guilty reigned supreme.
This set of aforementioned facts do illustrate that predicating an impeachment motion on claims that has a crime has been committed, does not guarantee success. It appears that there is a presumption that a conviction must have been passed before a president can be sent packing. Therefore, such an outcome would entail the awaiting of long process, which establishes beyond reasonable doubt that a sitting president is indeed guilty of a crime.
In conclusion, that remark by the President might have been made in the hope of painting a picture that the Jubilee Party commands a majority that is capable of doing it all.
However, it was absolutely devoid of the understanding how difficult it would be to execute it even with those numbers. In the event Raila ascends to power, the Jubilee Party members can indeed frustrate him and often trash and suffocate his agenda. However, it is a complete different ball game when it comes to impeachment matters. They lack the requisite numbers and the threshold is absolutely high, maybe unreachable. In any event, the former Premier is of decent character – one may add more decent than the President and his deputy who despite their tainted reign, have come nowhere close to be impeached. The nullification of a President’s win is indeed historic but it may be a long while before the same can be said about impeachment. ^