Impeaching the Kenyan President is Not Treason, It's Constitutional

The political climate in Kenya has reached a boiling point, with public dissatisfaction toward President William Ruto's administration at an all-time high. The crescendo of dissent was prominently visible during the 30th June 2024 Presidential Roundtable, where President Ruto faced a barrage of tough questions and delivered what many viewed as inadequate responses. The streets are filled with demonstrators carrying placards that read, "When he is not Flying He is Lying," encapsulating the disillusionment of the masses. In this context, the discussion around impeachment is not only relevant but essential. This article explores the constitutional basis for impeachment, examines whether current circumstances warrant such action, and dispels the myth that impeachment equates to treason.

Article 21 (3) of the Universal Declaration on Human Rights states, "The will of the people shall be the basis of the authority of government." This principle is fundamental to democratic governance, emphasizing that the legitimacy of any government derives from the consent and trust of its citizens. President Ruto has ostensibly lost both. His administration's failures and the growing public unrest underscore a significant erosion of this foundational trust.

The Constitutional Basis for Impeachment

Article 145 of the Kenyan Constitution provides a clear and robust framework for the impeachment of a sitting president. It outlines specific grounds and procedures, ensuring that impeachment is not a frivolous act but a measured response to serious violations.

Grounds for Impeachment:

• Gross Violation of the Constitution or Other Laws: This includes any action by the president that undermines the constitutional order or legal frameworks of the country.
• Crimes Under National or International Law: Serious allegations of criminal conduct at the national or international level can trigger impeachment proceedings.
• Gross Misconduct: This is a broader category that can encompass a range of unethical or inappropriate behaviors that undermine the dignity of the office.

Procedure:

• A motion for impeachment requires the support of at least one-third of the National Assembly members.
• If supported by two-thirds of the National Assembly, the Speaker of the National Assembly must inform the Speaker of the Senate within two days.
• The Senate then convenes to hear the charges and may form a special committee to investigate.
• The president has the right to appear and be represented before this committee.
• If the committee substantiates the allegations, the Senate votes on the charges. A two-thirds majority vote in the Senate results in the president's removal from office.

This meticulous process ensures that impeachment is not taken lightly and provides ample opportunity for the president to defend himself.

The 2010 Constitution: A Pillar of Democracy

The 2010 Constitution of Kenya is a living document born out of the struggle for democracy, equality, and national unity. It was enacted following the 2007-2008 post-election violence, which claimed 1,300 lives and highlighted the need for profound constitutional reforms. The Constitution aims to protect all Kenyans by devolving government power, ensuring representation for marginalized communities, and providing safeguards through oversight bodies like the KNHRC, IPOA, NCIC, and EACC. These institutions are designed to limit the power and discretion of government offices and maintain checks and balances across the branches of government.

Despite these safeguards, the past 21 months have seen the executive branch frequently disregarding court orders and undermining judicial authority. This blatant disrespect for the rule of law is antithetical to the principles enshrined in the Constitution and erodes the foundations of democracy.

The Current Situation: Grounds for Impeachment

The situation in Kenya today, with the military operating domestically, widespread human rights abuses, and economic mismanagement, meets the constitutional threshold for impeachment. Reports of police violence against peaceful protesters, including the killing of a child, and the executive's disregard for court orders underscore a severe governance crisis.

Additionally, President Ruto's international conduct has been a diplomatic embarrassment, with taxpayers' money spent on non-essential foreign trips while the country faces dire economic challenges. His recent statement about needing to borrow another trillion shillings to sustain the economy highlights the administration's fiscal irresponsibility.

Democracy and Self-Correction

A profound quote from the 1997 Inter-Parliamentary Union Declaration encapsulates the essence of democracy: "As an ideal, democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society and enhance national tranquility, as well as to create a climate that is favorable for international peace. As a form of government, democracy is the best way of achieving these objectives; it is also the only political system that has the capacity for self-correction."

Impeachment, as provided for in the Constitution, is a mechanism for such self-correction. It is a means to restore trust and ensure that those in power remain accountable to the people.

Is Impeachment the Right Thing to Do?

From a human rights perspective, the answer is a resounding yes. Impeachment could halt further human rights abuses, restore public trust, and demonstrate that Kenya's democratic institutions can effectively address misconduct and protect citizens' rights.

Will Parliament Act?

The decision ultimately lies with the members of parliament. While the outcome is uncertain, history will judge their actions. Failing to act in the face of clear constitutional violations and public outcry would be a significant dereliction of duty.

Comparative Analysis of Impeachments Globally

Impeachment is a crucial mechanism within democratic systems to hold leaders accountable, and its application varies significantly across countries. Below is a comparative analysis of presidential impeachments in the United States and Brazil, highlighting the outcomes and impacts on democratic principles and political stability.

United States: President Richard Nixon

Background:

• Incident: Watergate scandal (1972-1974)
• Outcome: Resignation on August 8, 1974, before impeachment proceedings could conclude

Analysis:

Democratic Principles:

• The Watergate scandal exposed significant abuses of power, including illegal activities by Nixon’s administration.
• Investigative journalism, particularly by The Washington Post, played a critical role in uncovering the scandal.
• Congressional hearings and the Supreme Court's ruling that Nixon had to release the Oval Office tapes demonstrated the effectiveness of checks and balances within the U.S. democratic system.

Rule of Law:

• Nixon’s resignation under pressure from imminent impeachment illustrated the principle that no one is above the law.
• The process reaffirmed the accountability mechanisms embedded in the U.S. Constitution.

Political Impact:

• Vice President Gerald Ford assumed the presidency and later issued a controversial pardon for Nixon, which stirred public debate but aimed to help the nation move forward.
• The scandal led to greater public cynicism about government but also to reforms intended to increase transparency and reduce corruption.

Brazil: President Dilma Rousseff

Background:

• Incident: Accusations of fiscal mismanagement and budgetary manipulation (2016)
• Outcome: Impeachment and removal from office on August 31, 2016

Analysis:

Democratic Principles:

• The impeachment process was marked by political polarization and accusations of ulterior motives among Rousseff’s opponents.
• Despite the contentious nature, the process adhered to constitutional procedures, demonstrating the formal robustness of Brazil’s democratic institutions.

Rule of Law:

• Rousseff’s impeachment highlighted concerns about political accountability and transparency in government operations.
• The legal basis for the impeachment, often debated, was grounded in allegations of violating fiscal responsibility laws rather than criminal misconduct.

Political Impact:

• The impeachment led to significant political upheaval, with Rousseff’s supporters viewing it as a parliamentary coup, while opponents saw it as necessary for restoring economic stability.
• Michel Temer, Rousseff’s vice president and successor, faced his own controversies, contributing to ongoing political instability and public distrust.

South Korea: President Park Geun-hye

Background:

• Incident: Corruption scandal involving influence peddling and abuse of power (2016-2017)
• Outcome: Impeachment and removal from office on March 10, 2017

Analysis:

Democratic Principles:

• The scandal involved Park’s close confidante, Choi Soon-sil, exerting undue influence on state affairs and extorting funds from major corporations.
• Massive public protests demanding Park’s removal showcased the active civic engagement and strength of civil society in South Korea’s democracy.
• The Constitutional Court’s unanimous decision to uphold the impeachment highlighted the independence and integrity of the judiciary.

Rule of Law:

• Park’s impeachment reinforced the principle that even the highest officeholders are subject to the law.
• The thorough investigation and judicial process demonstrated the effectiveness of South Korea’s legal and institutional frameworks.

Political Impact:

• The scandal and impeachment led to a significant political shift, with the election of Moon Jae-in, who promised extensive reforms and greater transparency.
• The process helped restore public trust in democratic institutions, although political divisions and tensions remained.

Presidential Resignations Under Public Pressure

Several presidents have resigned due to public pressure or loss of trust, reflecting the power of collective public dissent and the mechanisms within democratic systems to address leadership failures. Here are some notable examples:

Evo Morales – Bolivia (2019)

In 2019, Bolivian President Evo Morales resigned following widespread protests and allegations of election fraud. The protests erupted after a controversial election result in which Morales claimed victory for a fourth term amid accusations of irregularities and vote-rigging. The situation escalated as demonstrators took to the streets, demanding his resignation. The Organization of American States (OAS) conducted an audit, which found significant irregularities in the election process. Facing mounting pressure from the public, opposition, and even the military, Morales stepped down. His resignation paved the way for new elections and a shift in the country's political landscape, demonstrating the impact of sustained public pressure and international scrutiny on democratic processes.

Richard Nixon – United States (1974)

One of the most notable presidential resignations in history is that of U.S. President Richard Nixon. In the wake of the Watergate scandal, which involved a break-in at the Democratic National Committee headquarters and subsequent cover-up efforts by the Nixon administration, the president faced intense investigation and public outcry. As evidence of his involvement in the scandal became overwhelming, and with impeachment proceedings underway, Nixon chose to resign to avoid inevitable impeachment. His resignation marked a significant moment in U.S. political history, reinforcing the principle that even the highest office is not above the law.

Hosni Mubarak – Egypt (2011)

Egyptian President Hosni Mubarak resigned in 2011 after 18 days of mass protests during the Arab Spring. The protests, driven by widespread discontent with corruption, police brutality, and economic issues, saw millions of Egyptians demanding his resignation. The pressure from the streets, coupled with international attention and the loss of support from the military, forced Mubarak to step down. His resignation ended 30 years of autocratic rule and led to a period of political transition in Egypt, illustrating the power of grassroots movements in effecting political change.

Alberto Fujimori – Peru (2000)

Peruvian President Alberto Fujimori resigned in 2000 amidst a major corruption scandal and mounting public protests. Fujimori, who had ruled Peru with a strong hand for a decade, faced allegations of human rights abuses and corruption. The tipping point came when a video surfaced showing his intelligence chief bribing a congressman. As protests intensified and international pressure mounted, Fujimori fled to Japan and submitted his resignation via fax. His departure highlighted the role of public accountability and the influence of media exposure in political resignations.

Suharto – Indonesia (1998)

In 1998, Indonesian President Suharto resigned after 31 years in power. His resignation followed severe economic turmoil and mass protests demanding his ouster. The Asian financial crisis severely affected Indonesia, leading to widespread unemployment, inflation, and poverty. The economic distress fueled public anger against Suharto's authoritarian rule and rampant corruption. Protests grew in size and intensity, culminating in his resignation. Suharto's departure marked the end of decades of authoritarian rule and initiated a democratic transition in Indonesia.

The Way Forward for President Ruto

The democratic and honorable course of action for President Ruto would be to resign, acknowledge his administration's failures, and take responsibility for the current state of the nation. This would involve a sincere apology and recognition of the lives lost and the suffering endured by many Kenyans. Anything short of this would likely exacerbate the current crisis.

In a nutshell: The path forward for Kenya is fraught with challenges, but the principles enshrined in the 2010 Constitution provide a roadmap for navigating these turbulent times. Impeachment is not an act of treason; it is a constitutional remedy designed to uphold democratic values and ensure that those in power are held accountable. The question now is whether Kenya's parliament will rise to the occasion and fulfill its constitutional duty to protect the nation and its people.

Ruth Nashipae Muigai, LLB (Hons), LLM Human Rights Law, University of East London, ? ? ? ? Fellow at Maxwell School of Citizenship & Public Affairs, Syracuse University.