Impeachments are inherently political and the courts traditionally play a limited role in overturning them, especially when constitutional procedures are followed. Examining similar cases from other democracies, like the United States and South Africa, can provide insights into how Kenya’s courts might approach Gachagua’s case.
In Kenya, impeaching a high-ranking official like the deputy president involves significant procedural hurdles. Article 150 of the Constitution outlines a rigorous process for impeachment that requires the National Assembly and the Senate to agree by a supermajority.
This dual-level approval, which is among the strictest standards globally, ensures that impeachment is a carefully considered decision rather than a simple majority rule. In comparison, other nations require fewer decision-makers or a lower threshold, making Kenya’s process unique in its high level of scrutiny and demand for consensus.
One reason the courts might avoid nullifying Gachagua’s impeachment is to respect this high procedural threshold. Courts often refrain from stepping into matters where the legislature has been granted explicit constitutional authority.
The United States Supreme Court, for example, ruled on this principle during the Watergate scandal when President Nixon faced impeachment. In that case, the Supreme Court emphasized that the Senate had sole power over impeachment and that the courts would not interfere as long as the procedures laid out in the Constitution were followed. Similarly, in South Africa, former President Jacob Zuma was pushed to resign under intense pressure from his own party, demonstrating that political processes, rather than judicial intervention, are often used to address misconduct at the executive level.
Kenya’s courts are likely to follow this precedent, focusing on procedural fairness and leaving the political branches to handle impeachment. Article 259 of Kenya’s Constitution instructs judges to uphold procedural rights while interpreting the Constitution holistically, taking into account the duties, rights, and justice embodied in its provisions.
This means that, as long as the supermajority thresholds in the National Assembly and Senate are met, courts may see little basis for nullifying the impeachment unless there were significant procedural violations.
A common argument against impeachment is that it interferes with popular sovereignty, as it removes an elected leader. However, in a constitutional democracy like Kenya’s, impeachment does not dissolve the government or disrupt the ruling party’s stability.
Unlike systems where removing a top leader automatically leads to new elections, Kenya’s process only holds individuals accountable, leaving the ruling party and government intact. This distinction is important in maintaining institutional stability; the system prioritizes the office and public trust over individual officeholders, ensuring that governance can continue smoothly even if specific officials are removed due to misconduct.
Alexander Hamilton, one of the United States’ founding fathers, wrote in The Federalist Papers that impeachment should address “offenses against society itself,” which are political in nature and relate to violations of public trust.
Kenya’s constitutional design appears to follow this same principle, positioning impeachment as a means of maintaining accountability without necessarily destabilizing governance. Thus, Kenyan courts may hesitate to nullify Gachagua’s impeachment, recognizing that impeachment is a safeguard of public trust and an essential aspect of political accountability.
0 Comments