Let impeachment not be a political death sentence

The recent clearance of former Kiambu governor Ferdinand Waititu by the Registrar of Political Parties to run in next month’s Nairobi gubernatorial by-election set off a firestorm with many, understandably, questioning his integrity. Mr Waititu has been in trouble with the law many times before but his impeachment appears to be the controlling issue. 

Perhaps seeing an opportunity, the Ethics and Anti-Corruption Commission (EACC) seized the moment and issued a curious statement effectively declaring that anyone in Waititu’s position does not qualify to hold any other state or public office till death.

EACC’s rationale, supported by nearly every other Kenyan thought leader’s opinion on the matter, is that, per Article 75 of the Constitution, one is disqualified from holding public office ever again if they are removed for misuse or abuse of a state or public office. 

To clarify, the Commission has been clear that it will recognise the findings of “any court of law or agency mandated to interpret and apply the Constitution”.

This is a mistaken position that we should vigorously contest. To begin with, a lifetime ban from office is an extremely drastic decision that permanently interferes with the political rights of the affected person. It also interferes with pre-ballot democracy by limiting the candidates that citizens can vote for. 

Of course, both the political rights and democratic space can, in fact, be legitimately limited. Nonetheless, we must be careful. Although we all have every reason to be concerned about the integrity of those seeking state and public offices, is impeachment really the most appropriate measure of whether or not Chapter Six of the Constitution has been violated?

Is it the most appropriate one to use in deciding that one should suffer a lifetime ban from public office? No.

First, we have to grapple with the nature of impeachment, both at the county assembly and the Senate. The evidence so far is, the process is often shrouded in mystery and secrecy, regular double standards, political horse trading and, sometimes, corruption. Indeed, the decision to impeach a governor or not seems more extra-legal than not. 

Sonko’s impeachment

I listened to and read then-Nairobi Governor Mike Sonko’s impeachment proceedings in full. I am certain that nobody can confidently mark with precision at what point the threshold of impeachment was crossed. The truth is, so far, impeachment appears to be mostly controlled by political capital.

Secondly, the likely consequence of allowing impeachment to automatically mean a lifetime ban from office is to force governors to further mollycoddle MCAs, senators and party leaders. Should an ambitious politician realise that their political career will be on the line, they will feel an extraordinary pressure to keep those whose decisions count happy.

If that would only require good governance, we would have nothing to worry about. But it always requires a lot else — including endless favours, mainly financial.

Finally, we need to ask ourselves , what exactly is the point of the impeachment law anyway? As I see it, it is not meant to rescue us from the ‘hard work’ of not voting for bad leaders. It is designed to offer an opportunity to bring a premature end to an existing term of office, and it ought to be limited to that.

In a country such as ours, with a gaping gap between the political class and the people’s interests, can we really conclude that losing the confidence of the people’s representatives is equal to losing the confidence of the people? And even if so, is it lost permanently, for the rest of one’s life? Surely not. 

One way out of this conundrum is for us to embrace an aggressive role for the courts to substantively review impeachment decisions for fairness. Then, we would be able to tolerate impeachment decisions with such enormous implications.

Yet allowing this kind of a role for the courts is almost certainly a non-starter for senators, and would, in any event, create difficult separation of powers problems for our constitutional ecosystem.

Mr Abungu teaches law at Strathmore Law School. [email protected].