Impeachment is political even as courts absorb such matters

This is impeachment season. Unlike impeachments for governors, the impeachment of Deputy President Rigathi Gachagua will be the first targeting the Presidency under the 2010 Constitution.

There are therefore many unknowns not tested, unlike governors’ impeachments which have been tested severally, right up to the Supreme Court. By the time Riggy G’s process is over, the constitutional provisions having implications on the matter will have been tried and tested to the furthest limits of their elasticity.

As we speak, I am aware of at least five cases before the High Court trying to stop proceedings in the National Assembly. More will be filed. The High Court should avoid granting exparte orders on any issue related to the impeachment; it should instead expedite hearings on any justiciable issues and deliver decisions on the merits within the shortest time possible.

In any event, if we have been able to commence, try and conclude a presidential petition in 14 days, determining basic procedural questions on impeachment should not be impossible. Having said that and without going into the politics of the impeachment, the issue lawyers seem most divided about is whether the High Court has jurisdiction at all on the impeachment of the Deputy President. The reason lawyers are divided, and like most things Kenyan the intensity of one’s view is, subject to a few exceptions, aligned with one’s politics, is that there are no direct legal provisions that address the matter. Both as a matter of general law and under the Constitution, the High Court has unlimited jurisdiction to hear all disputes except where such jurisdiction is expressly ousted by the Constitution.

The impeachment of the Deputy President is not one of the issues directly exempted from the High Court’s jurisdiction. The matter would have ended there had it not been for Article 165(3) c. This Article prohibits the High Court from hearing appeals in respect of tribunals established to determine the mental or physical capacity of the President or Deputy President to hold office.

This process of determining capacity is provided for in Article 144 and is different from an impeachment. Article 165(3)c does not address impeachment. There are two possible interpretations as to whether jurisdiction exists and lawyers can argue themselves hoarse in either direction.

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The first argument says; that the Constitution chose to oust the High Court’s jurisdiction on issues concerning the removal of the President and their Deputy from office. They do not permit the Courts to hear petitions on Presidential elections or sit in judgment over the decision of a tribunal to remove the Presidency from office for incapacity.

Based on parity, it follows that this exclusion should be read “ejusdem generis”; these processes are of the “same family” and should be treated the same. Consequently, the High Court should not entertain cases relating to removal of the President or their Deputy in whichever manner.

The opposite side will argue with similar vehemence that makers of the Constitution were aware of the three ways in which a President and their Deputy can be removed from office. They chose to insulate two processes from the High Court and leave one out. If they had intended to oust the High Court from impeachment disputes, nothing would have been easier than to say so!

Interestingly there are numerous instances where courts have taken both approaches and justified them. No wonder they say the law is a donkey! Considering the critical importance of the matter, it is unfortunate that no one had ever sought an advisory opinion on the matter from the Supreme Court.

It is important that the matter be settled once and for all so that the high-octave politics of impeachments do not have too many issues left to conjecture. But whether the High Court is deemed to have jurisdiction or not and whether attempts will be made through peripheral challenges that result in delaying the process, it is important to emphasise that impeachments are ultimately political processes.

As long as Parliament follows the procedural rules in the impeachment process, the Courts will not interfere with the merits of the decision. That is the nature of the beast. It is politics, full stop.

The writer is an advocate