Senate during a past session. (Inset) Deputy President Rigathi Gachagua.
For the last few weeks, the impeachment of Deputy President Rigathi Gachagua has been broadcast live on television sets and radio stations. The citizens too had their day when they were invited to give their views through public participation on whether or not he should be impeached.
Accused of 11 offences, including corruption, insubordination, undermining the government and divisive politics, he has sought to fight his impeachment through various means, including the legal route where more than 20 cases have been filed in courts. So far, there have been no conservatory orders issued to restrain Parliament from going ahead with the impeachment process and consequently, the National Assembly being the accuser house by a majority voted to have Gachagua impeached on October 8 and passed the mantle over to trial chamber, the Senate, to either convict or acquit.
The question now on the minds of many Kenyans as the Senate takes on this next step is whether the Constitution shall be trampled upon or upheld. So, for utmost importance to “Wanjiku, Atieno, Moraa, Amina, Khasakhala, etc” is the question: Will the Senate uphold all the charges and will the evidential standard be met to either say Gachagua must go or Gachagua must stay? Since I am one of the judges, I certainly cannot make any verdict for now till I keenly listen and evaluate evidence either against or for Gachagua. However, we can seek guidance from impeachments from other jurisdictions and Senate’s own past impeachments.
House of Representatives
In the United States, for instance, the Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and “the Senate shall have the sole Power to try all impeachments … (but) no person shall be convicted without the Concurrence of two-thirds of the Members present”.
This congressional power is a fundamental component of the system of checks and balances. Through the impeachment process, Congress charges and then tries an official of the federal government for “treason, bribery, or other high crimes and misdemeanours”. The definition of “high crimes and misdemeanours” was not specified in the Constitution and has long been the subject of debate. Comparatively, in Kenya, under Article 150(1)(b) of the Constitution (2010), the DP may be removed from office by impeachment on the ground among others, gross violation of a provision of the Constitution or any other law, (emphasis added).
The Court of Appeal in the case of Martin Nyaga Wambora set the test of what gross violation of the Constitution entails. On its part in the Senate in the Ann Waiguru impeachment stated that ‘gross violation’ must be a flagrant violation, a glaring error, nasty, unpleasant, vulgar or crass, and severe transgression of the Constitution or a law. Having set that standard, it is expected that this is what senators will use as a measure to determine the impeachment.
In the US, President Richard Nixon was impeached from office when the House of Representatives on October 30, 1973 initiated the process during the Watergate scandal. The first impeachment article alleged that the President obstructed justice by attempting to impede the investigation into the Watergate break-in. The second charged the President with abuse of power for using federal agencies to harass his political enemies and authorising burglaries of private citizens who opposed the President. The third article accused the President of refusing to cooperate with the Judiciary Committee’s investigation.
Official investigation
The House Committee on the Judiciary soon began an official investigation of the President’s role in Watergate, and, in May 1974, commenced formal hearings on whether sufficient grounds existed to impeach Nixon of high crimes and misdemeanors under Article II, Section 4, of the US Constitution.
The impeachment investigation and ensuing resignation of President Nixon stands out as a profoundly important experience informing the standard for the impeachment of presidents. Although Nixon was never impeached by the House or subjected to a trial in the Senate, his conduct exemplifies for many authorities, scholars, and the general public the paradigmatic case of impeachable behavior in a President.
The Committee considered but rejected two proposed articles of impeachment. The first rejected article concerned receiving compensation in the form of government expenditures at his private properties in California and Florida — which allegedly constituted an emolument from the US in violation of Article II, Section, 1, Clause 7 of the Constitution — and tax evasion. Those members opposed to the portion of the charge alleging receipt of federal funds argued that most of the President’s expenditures were made pursuant to a request from the Secret Service; that there was no direct evidence the President knew at the time that the source of these funds was public, rather than private; and that this conduct failed to rise to the level of an impeachable offense.
Some members opposed to the tax evasion charge argued that the evidence was insufficient to impeach; others that tax fraud is not the type of behaviour at which the remedy of impeachment is directed. The second rejected article accused the President of concealing from Congress the bombing operations in Cambodia during the Vietnam conflict. This article was rejected for two primary reasons: Some members thought the President was performing his constitutional duty as Commander-in-Chief and Congress was given sufficient notice of these operations. President Nixon resigned on August 9, 1974, before the full House voted on the articles of impeachment.
On the other hand, whereas Kenya borrows a lot from Britain for its political organisation, it however comes as no surprise to learn that Britain abandoned the practice of impeachment in 1806. The last impeachment was that of Henry Dundas, 1st Viscount Melville. Since then, other forms of democratic scrutiny have been employed such as the doctrine of collective cabinet responsibility and recalling of MPs. These have been the favoured processes and impeachment is viewed largely as an obsolete process although it still exists as a power that can be deployed by parliament.
Impeachment process has been used a lot in the US. They also use the process to impeach judges, for instance, an impeachment motion was brought against Federal Judge Samuel Chase, who had served on the Supreme Court since 1796 for reasons of drunkenness and insanity. His trial challenged the Senate to explore the meaning of impeachable crimes.
The judge showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases.
The trial managers (members of the House of Representatives) hoped to prove that Chase had “behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard”. Highlighting the political nature of the case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench. Senate on March 1, 1805, acquitted Chase on all counts. A majority voted guilty on three of the eight articles, but on each article, the vote fell far short of the two-thirds required for conviction. The Senate, thereby, effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. It was widely believed that if Jefferson had hit his target, through impeachment, then he would have moved to a bigger target who was Chief Justice John Marshall, whose decisions had been angering the President. In so deciding senators sent a message that impeachment should not be employed against a judge or any official just because he expressed his opinion and that the senate should protect the rights of the minority over the tyranny of the majority.
South Korea too uses impeachment to remove public leaders who violate the Constitution. In 2017, President Park Geun-hye of South Korea was not spared by impeachment as on March 10, 2017, all eyes were on the Grand Courtroom at the Constitutional Court of Korea. After the passing of the impeachment Bill, on December 3, 2016, Parliament voted to impeach her though it was after the public pressured for her resignation or impeachment. The President was immediately suspended from office as per Article 65(3) of the Constitution, which provides that the National Assembly may institute impeachment proceedings against high officials (such as the President, the Prime Minister, Justices, and Judges) who violate the Constitution, or other laws, in the performance their official duties. This is not limited to laws related to the civil service or criminal law, but covers any acts.
The impeachment was then initiated in the Constitutional Court just like the Senate will do from Wednesday. Justice Jung-mi Lee, Acting President of the Constitutional Court, stated that “the Constitution is the basis of the existence of all state organs including the President, and the people is a source of the constituent power of such Constitution. Bearing it in mind, the Court is now in the presence of the pronouncement of the final decision, with a mind of the party standing in front of the court of history”. The court ordered, by a unanimous vote, the impeachment of the President therefore, the Head of State was ousted from office, by legal means, for the first time in Korean history.
What led to her impeachment was loss of public trust in the President. This followed dwindling public trust and confidence in government because despite several maladministration cases, the National Assembly provided little oversight over the executive branch, and the President had not been responsive to the people.
The impeachment of the Deputy President is now in the hands of the Senate. Kenyans have asked the Senate, which they consider to be a house where sanity has always prevailed, to bisect the charges with utmost alacrity, commitment to the soul of the Constitution and to uphold the words of our National Anthem that “justice be our shield and defender”.
As Aaron Burr stated, “The Senate is a sanctuary; a citadel of law, of order, and of liberty; and it is here – it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrensy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor”.
Senior Counsel Okong’o Omogeni is the Senator for Nyamira County and former Law Society of Kenya Chairman.
