The Impeachment Procedure Bill 2018 sought to provide a procedure for the removal from office by impeachment of the president, his deputy, and county governors and their deputies.
The bill was passed by the Senate and introduced into the National Assembly on June 26, 2019.
It also sought to define the extent of public participation in the impeachment of state officers and whether an investigation and hearing should be conducted within 10 days.
During the impeachment proceedings in the Senate, Senior Counsel Paul Muite, head of the legal team for impeached DP Gachagua, argued that his client needed more time to personally appear before the Senate on the matter after falling ill and being hospitalised.
“The Senate’s greater duty is to comply with the Constitution,” said Mr Muite, citing Article 50 of the Constitution.
Prof Migai Akech, a constitutional law expert, says the Constitution does not set a deadline for the Senate to consider an impeachment motion.
He says the only deadline is for an investigation by a Senate committee, which must be done within 10 days, yet the Senate sat in plenary while considering the impeachment motion against Mr Gachagua.
“The Constitution envisages an investigation and a hearing. The investigation is limited to 10 days. A hearing then follows and it does not have a deadline for good reason. Having chosen to proceed in plenary, the Senate needed to investigate and then hold a hearing. It proceeded to the hearing,” says Prof Akech.
City lawyer David Ochami argues that if the bill had been enacted, it would have addressed all the grey areas. He said the 10-day period provided in the Constitution would have applied if the proceedings had been led by a special committee as contemplated in Article 145 (3) (b) of the Constitution.
“The 10 days is also prescribed for the plenary to investigate, debate and vote in rule 3 of The Impeachment Procedure Bill 2018, which never became law,” says Mr Ochami.
Mr Ochami notes that the Constitution does not give a time frame within which the investigation must be concluded if conducted by the Senate's plenary or by a special committee.
“My view is that debate or the hearing and voting on the outcome of the special committee findings is not restricted within these 10 days. Where the Constitution does not specify a time frame, courts have adopted the 'reasonable time' standard of 14 days to fill that gap.”
The legal question that needs to be answered is whether Article 145 of the Constitution provides for two separate processes of investigation and hearing, and whether the investigation should have taken place in the Senate or the National Assembly.
According to city lawyer John Mwai, Article 145 of the Constitution speaks of a hearing and an investigation because the two are distinct and separate.
“Parliament investigates matters frequently. The Senate has formed committees in the past to investigate allegations against governors impeached by county assemblies,” says Mr Mwai.
Mr Ochami notes that in cases where the Senate has gone the way of special committees, “these committees have returned reports to the plenary with findings that the allegations had not been substantiated.”
“Therefore, the purpose of the investigation as per the Constitution is to establish whether charges raised in the National Assembly have been substantiated. The opinion is divided on whether the investigation was supposed to be done in the Gachagua case even as others think this should have happened in the Senate,” says Mr Ochami.
