BY DR DUNCAN OJWANG
We must deal with concepts because concepts are important and the 2010 Constitution introduced a new vocabulary in our governance-the impeachment– in articles 144, 145 etc.
The power to impeach is best understood from the history of the Office of the Deputy President. The pleasure doctrine was the basis of the service of the Office of the Vice President Office.
The President previously had full power to hire and disappoint at will, and even for no good reason at all. With that history, the constitution came with a mechanism to protect and secure the Office of the Deputy President not to be removed at the whims of the President and besides being anchored in the presidency, article 147 of the constitution provides the functions as a departure from the dark past.
The Parliament’s power to impeach is best understood in the context of check and balance, with the constitution having elevated the Office of the Deputy President and at the same time understanding our political context that ultimately, the President and the Deputy President are politicians and hold political offices.
Like a loaded gun, those powers are set and the constitution envisions and prescribes what to do upon the vacancy in the Office of the Deputy President.
Non-delegation doctrine prohibits Parliament from delegating its responsibilities to impeach to any other branch, including the Judiciary or the public in populism.
Remember that this is also a political process and we must look at the political process that the two are not able to work. Law reflects the intellectual, socioeconomics and the political climate of its time.
The line between law and politics is not sharply divided. The law is simply responding to the political climate of our time. Ultimately, law is there to manage relationships.
Courts must remember that according to Aristotle is definition that law is order. There must be order. Benjamin Cardoso for law is the expression of principle of order to which men must conform in their conduct and relation as members of society.
In fact the word law and order has become a single word and we need order even in the presidency both as political and legal.
That is what makes the impeachment law effective and legitimate, because it is able to control reality and social order.
The degree of judicial intervention is determined by many factors. Courts are more likely to uphold the exercise of power when the function is clearly designated to that branch and the decision is supported by other factors that define the boundaries of constitutional powers.
For example, the process of impeachment is prescribed in the constitution and to avoid injustice, an impeachment motion begins with a higher threshold of initial support before bringing the motion and the threshold for impeachment is raised to a two-thirds majority and concurrence of both Houses.
In interpreting law and its spirit; is that law should be tailored to the particular customs, manners, religion, commerce, political system, to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of natives.
Law must be interpreted and tailored to the social reality of a particular society, its norm, climate, economic reality and soil.
At the heart of the impeachment debate is the question of ‘Who are we as Kenyans?’ The 2010 Constitution was about creating a nation state.
The reality from the history was that we must deal with our nationality and humanity issue. In the impeachment motion the nation state is at stake. Part of the issues was on how to deal with how to be united as a nation and deal with our humanity issues.
Our nationhood and humanity is at stake, because everything rises and falls on leadership. How do we manage our affairs and relationship with each other so that we do not repeat the mistake of our past. It is about managing relationships and it is about our nationhood issues.
There is a rhythm that
we have abandoned and we need
to return to it as Kenyan values in
article 10 that provides for national
unity and equality of citizens.