Is Article 75 (3) a standalone provision?

‘Impeachment is not a remedy for private wrongs; it is a method of removing someone whose continued presence in office would cause grave danger to the nation’ – Charles Ruff

By Ekesa Austin

The media has been awash with narratives and counter-narratives about who should not run in the upcoming August election. Civil society organizations, religious groups, and opinion leaders, including the Chief Justice and the Director of Public Prosecutions, have led the charge to have impeached politicians barred. The DPP, in fact, believes that “impeached persons are morally barred from contesting.” 

Impeachment is a constitutional remedy for serious violations of the government’s system. It’s the first step in a remedial process that could lead to removal from public office and possible disqualification from future office. The purpose of impeachment is not to punish individuals; rather, it is to ensure that constitutional government is maintained.

Kenyans passed the 2010 Constitution with the objective of correcting many of the ills that they believed had dragged the country behind for a long time. Leadership and integrity were two of the ills that Kenyans sought to address – and is the reason that the now-famous Chapter 6 of CoK was entrenched. The Chapter is based on the premise that state officers are the country’s nerve center and bear the highest level of responsibility in the management of state affairs, so their conduct should be above reproach. Kenyans, as a result, required, that those whose behavior does not bring honor, public confidence, or integrity have no place in the management of public affairs under the Constitution as stipulated under Article 75 (3) of the Constitution. 

Role of the Senate 

The Senate in serving to represent and protect the interests of counties and their governments participates in the oversight of State officers by considering and determining any resolution to remove the Governor, Deputy Governor, President, or Deputy President. The role of the Senate in the process of removal of either a county Governor or Deputy Governor from office involves the Speaker of the Senate informing the Senators of the impeachment resolution of the respective CA, appointing a Special Committee to investigate the impeachment charges or investigating the charges in plenary, hearing the Governor and either passing or failing the impeachment resolution. This gives the Senate the ‘sole power to try all gubernatorial impeachments,’ since it is the only State organ that can indeed investigate the allegations brought forth by the Respective CA against the county Governor.

The argument for a strict interpretation of Chapter 6

Article 75 (1) of the Constitution requires a state officer to avoid any conflict of interest in public or official duties, as well as compromising public or official duties while favoring personal interests or demeaning the office held. In both the private and public spheres, the State officer is expected to uphold these standards. In addition, 75(2) states that any state officer who violates the provisions of Articles 75(1), 76, 77, or 78(2), which deal with financial probity, restrictions on state officers’ activities, or citizenship, will face disciplinary action. If found guilty, the said state officials may be removed or dismissed from office. A person found culpable is barred from holding any other State office, according to Article 75(3). A literal reading of Article 75(3) reveals a finality that those impeached or rather dismissed from office should not hold any public office. 

The call for IEBC and the courts to strictly interpret Chapter 6 on leadership and integrity primarily stems from the fact that laws do not exist for cosmetic purposes. This was well captured in the decision in ‘Trusted Society of Human Rights Alliance Vs the AG & Others, Nairobi, HC Pet. No. 229 of 2012’. The learned judges emphasized:

“Kenyans intended that Chapter Six and Article 73 will be enforced in the spirit in which they included them in the Constitution. The people of Kenya did not intend that these provisions on integrity and suitability for public offices be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations.”

Kenyans enacted Chapter 6 to cure leadership and integrity ills that had eaten us to the core. In our case as a country, poor governance is characterized by weak leadership, compromise, vested interest and the monster called corruption has been a leech. In essence, abuse of Chapter Six by the political class has had an adverse effect on the social, political, and economic spheres thus eroding public confidence in government.  

Not absolute

Separation of powers outlined in the constitution is fluid and not pure. The Constitution gave the Senate and the County Assemblies (CA) two key roles; legislation and oversight. Impeachment does form part of oversight by the Senate and the CA. No concept in the governance structure is more widely celebrated than the separation of powers. 

Montesquieu envisioned a government made up of the executive, legislature, and the judiciary and a pure separation of powers of these three bodies aimed to protect fundamental human rights and liberties. He saw it as necessary to separate the functions of these three bodies because “every man invested with power is apt to abuse it and to carry his authority as far as it will go.” In Montesquieu’s support, John Locke argues that man is weak by nature and, as a result, if all power is concentrated in one or a few hands, such power will be abused. Montesquieu and Locke represent the pure separation of the power structure which is rigid and may be abused to procure an injustice.

In adopting a fluid separation of power structure, the framers could have been motivated by the blatant abuse of power that was witnessed during Kenya dark days. Kenya during a single-party period, the President could determine those to vie. He, in addition acted as the final decision making authority in the event of a dispute. With impeachment being a political process, elected leaders who differ or whom a Party Leader wants “removed” would greatly be disenfranchised in a pure separation of power structure. This position is appreciated by Professor Osogo Ambani who argues that, “rigid separation of powers would be ‘subversive of the efficiency of government’ and as a result would lead to its collapse.”

Kenya, unlike the United States of America, adopted an internal separation structure that is fluid. The concept of internal separation of power was advanced by James Madison, widely regarded to be the father of the United States of America Constitution. The theory posits that each branch of government should be given the ability to act independently, but that checks and balances should be in place to prevent usurpation. Madison goes on to say that each branch of government should have “the necessary constitutional means and personal motives to resist the other’s encroachments.”

Entrusting the legislature, namely the senate and the county assemblies, with power over the impeachment process is a way for Kenyans to check the executive at both levels of government. The executive, on the other hand, keeps the legislature in check by approving bills with the president’s signature. While the Senate and county assemblies have the power to impeach, the judiciary can still subject that power to judicial review; this is an example of the constitution’s overall fluidity.

The sacred place of judicial review

In the case of ‘Humphrey Makokha Nyongesa & others v Communications Authority of Kenya & 2 others’, the court defined judicial review as “the means by which the courts supervise the actions or decisions of administrative bodies or tribunals.” In a similar vein, renowned Administrative Law professor PLO Lumumba defines judicial review as the power of judges to examine public law functions and intervene as a matter of discretion to quash or prevent illegal, unreasonable, or unfair decisions. 

Lumumba avers that citizens’ rights and interests are protected through judicial review, which ensures that the executive and legislative branches stay within their mandated bounds. The ‘Mombasa Council v Republic and others’ is a locus classicus case. In this case, the Court of Appeal in Mombasa emphasized the fact that judicial review is concerned with the legality of the process leading to the administrative action, rather than the merits of the administrative action. 

Before the 2010 constitution, judicial review was governed by common law principles, specifically, Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act. A case before the court had to be substantive, and it could only be brought against government entities. Order 53 of the Civil Procedure Rules, which forms the procedural basis for judicial review under common law, required an aggrieved party to seek discretionary leave from the court before initiating judicial review proceedings. This is accomplished by establishing a prima facie case arising from an arbitrary, illegal, or irrational administrative action. 

Judicial Review is fully entrenched under the current constitutional arrangement. Article 22 states that anyone has the right to file a lawsuit alleging that a fundamental right or freedom has been denied, violated, infringed upon, or threatened. Article 47 guarantees everyone the right to prompt, efficient, lawful, reasonable, and procedurally fair administrative action. It also requires administrative bodies to provide written reasons to people whose fundamental rights and freedoms have been or are likely to be violated as a result of their actions. The Fair Administrative Actions Act, 2015 was enacted by Parliament to give effect to the provisions of Article 47, as required by the constitution.

Role of the Courts in impeachment

A conversation about the role of the court in the impeachment process cannot commence without addressing the question of jurisdiction. Jurisdiction was defined in ‘Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd’ as the court’s ability to decide cases that have been brought before it or to take cognizance of cases that have been presented to it in a formal manner for decision. The court’s authority is limited by the statute, charter, or commission that established it, and it can be extended or restricted in the same way. The late Nyarangi J in the locus classicus case asserted, 

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage…

The jurisdiction of the High Court is drawn from Article 23 (3) and Article 165 (3), (6), and (7) in connection with the protection of accrued fundamental rights and freedoms, as well as the High Court’s supervisory jurisdiction over “any person, body or authority exercising a judicial or quasi-judicial function.” In addition, with regard to allegations of violation of constitutional principles, the provisions of Article 25 (8) expressly provide that any person “has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.” A claim of abuse of the constitution can be by either the person affected or a representative in addition to a person acting in the interest of the public.

The High Court has supervisory jurisdiction over the subordinate courts and any person, body, or authority performing a judicial or quasi-judicial function, but not over a superior court, according to Article 165 (6). Similarly, Article 165 (7) empowers the court to “request the record of any proceedings before any body or authority and, if warranted, make any order or give any direction it considers appropriate to ensure the fair administration of justice.” During an impeachment process, the bodies conducting it, namely the CA and the Senate, play a quasi-judicial role that falls under the supervisory jurisdiction of the court(s), with the High Court being the first ground of appeal. 

In addition, Kenyan courts appreciate that it has no jurisdiction to determine an impeachment claim. This precedence was set by Marshall J in ‘Marbury v Madison’ where he explained that the constitution invests certain political powers to the President in the exercise of his functions to which they cannot interfere. A similar position was taken in Nixon v United States of America. In this suit, the USA Supreme Court held that, “A controversy is non-justiciable i.e. involves a political question where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department…”. 

Conclusion

A close examination of the provisions of the CoK, 2010, the CGA, 2012, as well as the Standing Orders of the County Assemblies and the Senate Standing Orders, reveals that there is a sufficient framework for the removal of county Governors and Deputy Governors from office. The Kenyan constitutional, legal, and institutional framework for the impeachment of county governors, if properly conducted and interpreted, is sufficient to ensure that the objects and principles of devolution are realized. As a result of the foregoing, judicial review is premised on ensuring that the three main branches of government do not act ultra vires. However, while judicial review is encouraged, the courts must take care not to overstep their bounds and disrupt the executive or legislative branches’ normal operations. 

By preventing the other arms from performing their functions independently, the doctrine of separation of powers would be undermined. This research has shown that Article 75 (3) cannot be considered a stand-alone act. The reason for this is that the constitution’s framers envisioned flexibility in enacting checks and balances that, if rigid, could have been abused.