By Wachira Maina
Summary of the Claim
The High Court has made five mistakes in its Fair Trial justification and the award of personal damages in the Gachagua impeachment decision. The Judges failed to see that:
a) Impeachment hearings in the Senate are trials sui generis – trials in a special class by themselves – not judicial proceedings. The absence of a true adversarial structure alters the nature of the duties and rights at stake.
b) Parliament’s ability to impeach a rogue President – or his deputy – is a power to protect and safeguard the democratic and republican character of Kenya. The injury that impeachment cures is a constitutional injury to the constitutional sovereign, the People of Kenya. It is not an injury to a senatorially convicted president or deputy.
c) The obligation to hear ex-DP Gachagua does not rest on his right to a fair trial- there is no such right in the impeachment context in the Senate – it rests on Parliament’s solemn constitutional duty to grant due process before it can convict. That is an obligation via which the Senate explains and justifies its decision to remove an elected President from office to Kenyans.
d) When Parliament fails to grant due process, it is an egregious injury to the Constitution and the Sovereign people. That injury cannot be cured and the people made whole by the grant of personal damages to Gachagua.
e) There is no such thing as an unconstitutional route to a constitutional end: if the Senate has ‘traduced’ its constitutional duty, its decision is a nullity.
WHO IS LEGALLY INJURED BY AN UNLAWFUL IMPEACHMENT? Impeachment as Prof. Laurence Tribe argues in his co-authored book To End a Presidency is a very big deal. A decision to remove a popularly elected President or his Deputy from office for ‘crimes’ that have not been tried by an independent judge is an astonishing – even terrifying- deployment of public power. That such a power is exercised by what may be a hyper-partisan Parliament ought to be justified on powerful and compelling grounds and robust evidence. Above all, the impeachment process must scrupulously safeguard the Republican character of the polity. The President and his Deputy are democratically elected and constitutionally legitimated as the representatives of the sovereign people. If either of them is unlawfully removed from office there is an irretrievable constitutional injury to the people and to the country. The injury is not to the President or his Deputy, no matter how hard done by they feel after they are booted out of office.
WHAT SORT OF “PUNISHMENT” IS AN IMPEACHMENT? The Legislature’s power to remove the President or his Deputy from office is the nuclear option in the arsenal of the constitutional system of checks and balances. In a presidential system such as Kenya’s, the legislature has many tools to restrain a would-be rogue executive: it can hold accountability hearings; it can conduct investigations; it can withhold money or impound budgets; it can refuse to approve appointments and, if the abuses are egregious, it can initiate a process to remove the President from office by “impeachment.”
Let’s get definitions out of the way. An “impeachment” process is an act challenging the honesty or credibility of a person. This is why we often talk of “impeaching the credibility of a witness.” As it relates to the removal of high state officials from office, impeachment was invented by the English Parliament in the late middle ages. It was a two-step process initiated by the House of Commons and completed by the House of Lords. In the early days, the Lords had sweeping powers to punish: they could levy fines; they could imprison the impeached and, most dramatically, they could convict and execute, as they did the Earl of Stratford in 1641 at the height of the war between King and Parliament.
Tracking back to this history, the U.S.A. borrowed this two-stage impeachment process when they made their Constitution in 1789. State constitutions adopted the same two steps. Today, both at the state and at the federal level impeachment proceedings are initiated in the Lower Houses and the trial and conviction are done by Senates. Even though a decision to convict does not carry the same terrifying or terminal punishments as it once did, the consequences are nonetheless grave. An impeached president is not only removed from office, but he is also banned from ever holding office. And there is still the possibility that he could be indicted but the criminal process is separate and different from the impeachment itself.
WHAT KIND OF TRIAL TAKES PLACE IN THE SENATE? What happens in the Senate during impeachment is not a “judicial trial.” In some countries- including the USA- it is called a ‘trial’ – and the Chief Justice presides. That term, ‘trial’ gestures, first, to the solemnity that the polity attaches to this power and second, the term also invokes an old tradition in which Parliament is, in fact, considered a court. In the Anglo-American system to which we are heir, the legislature has judicial power whose scope is somewhat ill-defined but includes power to summon witnesses and to punish for contempt (when the summons are defied) to the exact same extent as the High Court. Nonetheless, similarities notwithstanding, the trial in the Senate must be distinguished from a judicial trial.
A judicial trial is adversarial. That means that there are two or more opposing parties pressing their contending claims before a judge who sits as a neutral umpire. Each party has equal opportunity to make her case, and this opportunity is a matter of constitutional right. This is what is termed the right to a fair trial. Our system of judicial trials assumes that in the clash and counter-claims of the contending parties, the truth will out and from this, a trained judge, neutral between the parties and armed with forensic skills, will be able to parse documents and probe language to arrive at some version of the unvarnished truth.
It is important to grasp this notion of a ‘trial’ because, it will turn out, it has a bearing on whether Gachagua had a right to a fair trial in the impeachment at issue. To ‘try’ a case as a simple google search shows, is to ‘sift’ or to ‘distinguish’. The word comes from the Latin term ‘tractare’ which means “to handle.” In truth, that is what a judicial officer in adversarial proceedings actually does: he or she ‘sifts’ through the contending claims, the morass of unsavoury allegations and the “clashing facts” of sometimes mutually hostile parties and then weighs, as between them, who ultimately has the stronger claim and thus entitled to judgment. The word ‘judge’ comes from the Latin ‘iudex’, itself a compound of ‘ius’ – meaning law or right – and ‘dicere’ – meaning to say or pronounce.
Though what happens in the senate is called a trial, nothing like what happens in the courts occurs there. What takes place during impeachment is what lawyers call “a trial sui generis,” another Latin term that means “a trial in a class by itself” which implies that this is a that is unique and distinct from a judicial proceeding.
IN WHICH WAY, THEN, IS A SENATE TRIAL UNIQUE AND DISTINCT FROM A JUDICIAL PROCEEDING?: Both impeachment – in the National Assembly – and trial and conviction – in the Senate – are “inquisitorial proceedings” not adversarial ones. Inquisitorial hearings are those in which the persons who have the duty to decide cases also conduct investigations, rather than stand apart as neutral referees.
a) In the National Assembly: Impeachment is initiated by a member of the National Assembly. If such a member believes that the President (or his Deputy) has ‘grossly violated’ the Constitution or some other law; or he has some ‘serious reasons’ to ‘believe that the President has committed a crime under national or international law’ or that he has engaged in ‘gross misconduct’ – that member may, if he gets the support of at least a third of all MPs introduce a motion of impeachment. The motion and the supporting evidence will be debated in the National Assembly and if, on a vote, it wins the support of two thirds, or more, of all the MPs, the President (or his deputy) is impeached. The matter is handed over to the Senate for trial.
b) In the Senate: As in the National Assembly, the proceedings in the Senate are also inquisitorial. If the Speaker of Senate receives a notice of impeachment from the National Assembly, she must convene the Senate to consider the charges. There are two ways of going about this: the Senators may proceed to hearing the charges directly or they may appoint a Special Committee of eleven to make further inquiries. That means that there is an investigatory obligation on the Senate, Senators are not passive implementers of the MPs impeachment conclusions. The Senate Committee conducts inquiries and reports back whether the charges have substance or not within 10 days. If there is a case to answer, the trial phase begins. The President – or his deputy – must be heard in his own defence- before the Senate can vote on the charges. If at least two thirds of all Senators vote to uphold the charges, the trial is over and the President – or the Deputy President- must leave office.
THE CHIMERA THAT IS THE RIGHT TO A FAIR TRIAL: Observe these steps and their implications.
1. It is evident that neither the National Assembly nor the Senate conducts proceedings that can be technically described as a “trial” in the judicial sense.
2. There is no “adversarial issue” between two or more parties before either or both Chambers of Parliament.
3. The ‘accuser’ here is Parliament. It is also the ‘drafter’ of the charges, the ‘presenter’ of evidence, the ‘trier’ of the probative value and sufficiency of the facts and the evidence that it has itself proffered, and, ultimately, it is the ‘judge’ of the guilt of the impeached.
4. Unless the target of impeachment – the President or the Deputy President as the case may be- presents exculpatory evidence, there is no explicit duty on any chamber of parliament to offer any material beneficial to the President or to his Deputy.
In the context of the realities above, the notion of fair trial is, truly speaking, a chimera and nothing is more fantastically vain than the claim that a President facing an impeachment in the National Assembly or a trial in the Senate – has anything like a right to a fair trial. A right to a fair trial is a cluster of specific procedural safeguards built into judicial proceedings to ensure a proper evaluation of the claims pressed before the court. The President’s – and the Deputy President’s – right to be heard is a legal entitlement of “due process.” That entitlement is parasitic upon the Senate’s solemn duty under the Constitution to safeguard the republican character of the Constitution by conducting a fair impeachment trial.
Why is this duty imperative? Impeachment is a dramatic and far-reaching deployment of constitutional power. It has the potential to destroy the democratic and republican character of Kenya’s representative democracy. Though impeachment is intended as the people’s ultimate restraint on a rogue executive, it is also a potentially fraught power, ever teetering on the malignant. For, it is possible, that a rogue legislature can, if permitted to operate as a Kangaroo Court of impeachment, do as much harm to our democracy and to republicanism as a rogue President could. There is no presumption of saintliness or nobility on the part of Parliament or any of its chambers.
THE SENATE’S DUTY IN IMPEACHMENT IS TO THE REPUBLIC, GACHAGUA IS MERELY THE INSTANCE FOR ITS EXERCISE: It is not because Gachagua has a right to a fair trial that the Senate must hear him. It is because the Senate has a constitutional duty, owed to Kenyans -the constitutional sovereign – to conduct a fair impeachment trial. A fair process is constitutionally due to any person being impeached by Parliament. A person hauled for trial before Senate has a legitimate personal expectation that he or she will be heard fully and fairly. But that personal expectation is not the touchstone of the constitutional problem with the High Court’s impeachment judgment: The problem is that the High Court has trivialised the Constitution. It has traduced its own duty to correct a public wrong done to Kenyans – an unprocedural impeachment- by defining that wrong as a breach of a personal right for Gachagua. If the Court is right that the Senate did not hear Gachagua within the proper constitutional terms required of an impeachment trial, then the Senate’s decision has breached its duty to a sovereign people, its fundamental constitutional duty to safeguard Kenya’s democracy and the Republican character of the country. That is what has been egregiously violated, not Gachagua’s personal right to a fair trial.
THIS MATTERS MIGHTILY: Why, after this, should Kenyans ever vote for the President and the Deputy if either or both could capriciously be removed from office by a Parliament untethered from any sense of constitutional fidelity? Impeachment was meant as a Parliamentary power to beat back a grasping and lawless executive, but it is a power that the Constitution hems in with a moral ethos that obliges the Senate to grant due process and be legally solicitous to a President it means to convict, however opprobrious his conduct might be. That is the point: a democratically elected but rogue President may be removed from office but only if the process is fair, publicly justified and legitimate. If the Court concludes, as it has done here- even though on the wrong ground- that Gachagua was denied due process then that finding must invalidate the Senate’s conviction decision. If the means are unconstitutional, the ends are, too.
In constitutional law, there is no unconstitutional route to constitutional ends.
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