The Hidden Legal Maze: What Kenya’s Constitution Says About Impeaching A Deputy President

INTRODUCTION

Kenya is on the brink of a constitutional test as its Parliament and Citizens embark on the impeachment of the Deputy President. I hereby offer some thoughts on the constitutional and legal parameters that should shape this momentous undertaking.

THE PERTINENT ISSUES

1. Article 150 of the Constitution as read together with Articles 144 and 145 provide for the removal (impeachment) procedure of the Deputy President which duplicates the modus operandi for impeachment of President under the said Articles144 and 145. Article 150 (2) states: “The provisions of Article 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.”
2. The grounds for the removal of both the President and Deputy President by impeachment are identical as per Article 145(1)(a)(b)(c) and Article 150(1)(b)(i)(ii)(iii).
3. Removal of both by impeachment is premised on:

a) The ground of gross violation of a provision of (the) Constitution or any other law;

b) Where there are serious reasons to believe the President/Deputy President has committed a crime under national or international law; or

c) Gross misconduct.

4. The Impeachment Procedure Bill (Senate Bill No. 15 of 2018) which subsequently underwent its First Reading in the National Assembly on 26/6/2019 and approved for tabling in the House on 01/10/2020.
5. The Impeachment Procedure Bill once passed as an Act of Parliament was to realize two key objectives:

a) To provide a general legal framework for procedure of the removal from office by impeachment of the President, the Deputy President, Cabinet Secretary, Governor, Deputy Governor, and Member of a County Executive Committee.

b) To give further effect to the constitutional principles of democracy and participation of the people in impeachment proceedings.

6. Up to date, the Impeachment Procedure Bill has not been passed by Parliament. At some point in the parliamentary debate, it was decided that the Bill be split into two, one Bill covering impeachment for national executive officers and a second for county executive officers.
7. Similarly, the Public Participation Bill, 2023 has not been passed by Parliament.
8. Therefore, the impeachment procedure for the Deputy President will rely on the constitutional provisions on impeachment and public participation including any relevant Standing Orders of both the National Assembly and Senate as well as any appropriate County public participation law.
9. If the Impeachment Procedure Bill had been passed, several constitutional provisions and concerns would have been amplified. These include:

a) What is the meaning of ‘The Deputy President may be removed from office’ upon satisfaction of the grounds contained in the Article 150 that I have cited above? Does it mean that Senate has discretion even after finding any of the grounds has been substantiated? If so, what is the criteria for exercising the discretion? Does the Preamble of Article 150(1) of the Constitution and Article 145(7) contradict each other?

b) Since the impeachment of a President or a Deputy President who face an election on a joint ticket is tantamount to “de-election,” does it require a higher standard public participation than under other circumstances?

c) What are the elements anticipated under Article 150(2) to differentiate the impeachment of the President from that of the Deputy President since the latter’s removal is subject to “with necessary modifications” of the procedure for presidential impeachment?

d) Providing detail for the two procedures of impeachment before Senate, that is,

i. By a special committee of Senate and Senate as a full House

ii. By Senate alone as a full House.

In the first instance it is clear the President/Deputy President have the right of representation (see 145(5)(b). However when Senate on its own hears the matter under Article 145(3)(a), such a right of representation is not explicitly provided for. Possibly Article 50 on fair hearing becomes relevant.

e) Article 145(3)(a) characterizes the impeachment grounds as “charges”. Hence the Senate during impeachment of a Deputy President is a quasi-judicial body. The Impeachment Procedure Bill would have fleshed out the steps Senate must undertake to execute such quasi-judicial authority.

f) A legislative enactment would have broken down the meaning of gross misconduct.

Can the argument be validly made that in the absence of a facilitative impeachment law, the impeachment of the second ranking public official cannot be legal?

10. As indicated earlier, in the absence of a national public participation law, the guiding law on public participation is the Constitution and judicial interpretation of the same.
11. Although the Constitution does not explicitly provide for the Deputy President facing an impeachment charge to exercise a right to be heard before the National Assembly, it would appear the National Assembly has offered the Deputy President such an opportunity. What advantages does he have in the exercise of such a window?

a. He will lay bare his defence and as consequence may convince some of the 349 (minus from the 4 constituencies without MPs) members of the full House of his innocence in relation to all or some of the charges. (But it is to be noted if found guilty of even one of the eleven grounds, that satisfies impeachment charge at the tail end of the process).

b. He will possibly influence the public court.

c. He may begin to sway the 67 Senators who are the final arbiters of his fate.

d. He may begin to lay ground for future court action.

12. The disadvantages in relation to appearance before the National Assembly include:

a. Many of those who signed the initial Special Motion may have formed their opinion. It requires 233 votes at the National Assembly to convey the impeachment charges to the Senate.

b. Evidence that the Deputy President presents to the National Assembly will become public property which can be used by those who oppose him at Senate for better preparation.

13. After one day of public participation on 04/10/2024 at the 47 counties, the court was moved to find and declare that further public participation was necessary at the constituency level. The National Assembly conceded another day 05/10/2024 for public participation at the 290 constituencies.
14. The public participation standards developed by the Kenyan courts are extremely stringent.
15. For judicial treatment of adequacy of public participation. See BBI Case (Supreme Court Petition No.12 of 2021) in which the BAT Case (Supreme Court Petition No 5 of 2017) was cited as the leading authority on public participation especially Pg 248, 249.250 of the BBI judgement.

The following principles regarding public participation were enunciated:

 “Public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the   following framework for public participation.”

And further:

i. “As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.

ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.

iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.

iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.

v. Public participation is not an abstract notion; it must be purposive and meaningful.

vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.

vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.

viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.

ix. Components of meaningful public participation include the following:

a. clarity of the subject matter for the public to understand;

b. structures and processes (medium of engagement) of participation that are clear and simple;

c. opportunity for balanced influence from the public in general;

d. commitment to the process;

e. inclusive and effective representation;

f. integrity and transparency of the process;

g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”

16. Ultimately the following questions will be critical in determining the adequacy of public participation at both the National Assembly and Senate levels. These include:

i. Did those who voted for the President/Deputy President and those who voted against them in 2022 have ample opportunity in equal measure to make a decision on whether the Deputy President should be impeached or not?

ii. Did MPs who voted for the motion to impeach the Deputy President preside over the impeachment public participation process in an impartial and fair manner giving opportunity to all including those with differing opinion to present their views? Or is this a special public participation which should have been conducted by, for example, the IEBC to avoid possible bias?

iii. Did the National Assembly/Senate use reasonable means to carry out public participation even in the absence of a legislative framework?

iv. Where county public participation laws, practises and democratic cultures exist, were these factored at the county and constituency levels?

v. Was there reasonable notice prior public participation engagement?

vi. Was there reasonable opportunity for citizens to participate in terms of access to physical venues and other means/sites of public participation?

vii. Did the National Assembly and those who presided over the public participation events/spaces explain the meaning and impact of impeachment; legal process; as well as the entirety of the grounds so that the citizens could make an informed judgement? Significant civic education in relation to the cited laws within the eleven (11) grounds such as Articles 3,6,10,27,75,129,131,144,145,147, 148, 150, 152, 160, 174, 186, 189, Fourth Schedule of the Constitution and Sections 13 & 62 of the National Cohesion and Integration Act, Sections 45, 46, 47A & 48 of the Anti-Corruption and Economic Crimes Act, Sections 2,3,4 & 7 of the Proceeds of Crime and Money Laundering Act, Section 132 of the Penal Code and Section 29 of the Leadership and Integrity Act becomes key to securing effective public participation

viii. Peaceful environment in physical sites for public participation to ensure inclusive and effective representation.

ix. Genuine commitment to the process and attendant integrity and transparency.

x. Recording oral proceedings through Hansard.

xi. Avoiding double attendance during second day.

xii. Determination of adequate time in each venue and sizeable number of citizens.

17. The public views template provided by the National Assembly in a situation where charges are being preferred against the Deputy President should have been the charges themselves instead of merely a summary of the grounds of impeachment/charges. The grounds for impeachment are analogous to a charge sheet.
18. It would have been helpful for the National Assembly to explain to the citizens the functions of the Deputy President as laid down in Article 147 of the Constitution and any other law as well as in the Executive Order on the Organization of the Government of Republic of Kenya so that they can analyze the impeachment grounds in vis a vis the Deputy President’s functions and role.
19. Whereas I don’t intend to examine the impeachment grounds since that is the province of the National Assembly, Senate and the Courts, however I will, in passing, raise the following pertinent technical issues:

a. Ground 1: Itemize the inflammatory and inciteful utterances

b. Ground 2: Itemize unilateral public statements inconsistent with government policy & contradictory statements made against the President

c. Ground 3: Itemize inciting statement against Nairobi City County Government

d. Ground 4: Name judge in question and statement uttered against him/her

e. Ground 6: Itemize statements which constitute crimes under the said law

f. Ground 7: Make public the Wealth Declaration by the Deputy President which he filled before 2022 election.

g. For grounds 9,10, 11, indicate the laws which support them.

h. Where it is alleged the Deputy President was aided to commit crimes by proxies, name them.

20. Necessary detail in the framing of the impeachment charges allows citizens to understand better the reasons for impeachment and the Deputy President to prepare for his defense as required by the natural justice dictate.
21. In Section B Views on the Proposed Impeachment Motion No. 6 the third option of “Other (Specify)” can potentially provide a problem if an ‘Impeach both the Deputy President and President’ answer is proferred. Will such a response be considered as a positive reply for impeaching the Deputy President?
22. Since the current public participation has a voting/quantitive element, has the public participation process followed the procedures of a free, fair and transparent election? For example, the public views template is not serialized nor does it have security features; double voting using another person’s identity card could be an unwelcome factor etc.
23. The grounds associated with commitment of crimes should also have shown why the EACC, DCI, ODPP had not earlier moved to charge the Deputy President. If he obstructed justice, that is a further ground for impeachment.
24. In late 2022 the Director of Public Prosecution moved a Kenyan Court to withdraw a 7.4 Billion Kshs corruption case against Deputy President. Further the Deputy President had 202 Million Kshs refunded to him being monies initially associated with proceeds of corruption. Did he influence the court so that such activity could also become further grounds of impeachment?
25. In the public domain, the Deputy President was accused of funding some disruptive elements during the recent Gen Z Revolution which led to unprecedented loss of lives, disappearances, abductions, other human rights violations and destruction of property. These are crimes under both national and international law. Unless the above accusation was unfounded, it should have been included as a ground for impeachment.

CONCLUSION

26. As should be clear from the above narration, I am not interested in discussing the merits or demerits of the Deputy President’s impeachment case or its socio-political, cultural and economic ramifications.
27. My interest is that Kenya establishes a proper procedure for this first impeachment of a top executive member right so as to guarantee a sound precedent for subsequent impeachments in keeping with principles of good governance, rule of law, constitutionalism and observance of human rights.
28. I reiterate again the Constitution, subsidiary law and judicial precedents establish how an impeachment of a Deputy President and President should occur and when an impeachment occurs within the confines of the above legal framework, Kenyans must accept the accused has violated the law and we are better off without him or her in such esteemed office.