Discussions about the impeachment of Kenya’s Deputy President, Rigathi Gachagua, have reignited public interest in the constitutional procedures for removing a Deputy President from office.
The process, as outlined in the Kenyan Constitution, is intricate and designed to ensure that such a significant decision is not taken lightly.
The Kenyan Constitution provides two primary avenues for removing a Deputy President from office: impeachment and removal due to physical or mental incapacity.
These processes are detailed in Articles 144 and 145 of the Constitution.
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Removal of Office Via Impeachment
When it comes to impeachment, the Constitution lays out three specific grounds: a gross violation of the Constitution or any other law, credible reasons to believe the Deputy President has committed a crime under national or international law, or gross misconduct.
The impeachment process begins in the National Assembly, where a Member of Parliament must move a motion supported by at least one-third of all members.
If the motion gains traction and receives support from two-thirds of the National Assembly, it passes the first hurdle. At this point, the Speaker of the National Assembly must inform their counterpart in the Senate within two days. This notification sets the stage for the Senate’s involvement in the process.
Upon receiving the notification, the Senate Speaker has seven days to convene a meeting to hear the charges against the Deputy President.
The Senate may choose to appoint a special committee comprising eleven of its members to investigate the matter further. This committee plays a crucial role in determining the validity of the allegations.
The special committee’s investigation is thorough and time-bound. They have ten days to dig into the charges and report back to the Senate on whether the allegations have been substantiated.
During this investigation, the Deputy President is afforded the right to appear and be represented, ensuring due process is followed. The committee may also hear from the MP who initiated the motion and other National Assembly members.
The outcome of the committee’s investigation is pivotal. If they find the allegations unsubstantiated, the process ends there.
However, if they determine that the charges hold water, the Senate proceeds to vote on each impeachment charge. Before this vote, the Deputy President is given an opportunity to be heard, allowing for a final defense.
The bar for impeachment is set high. At least two-thirds of all Senate members must vote to uphold any impeachment charge for it to be successful. If this threshold is met, the Deputy President immediately ceases to hold office. If not, they continue in their role.
Removal From Office Due to Physical or Mental Incapacity
While impeachment deals with misconduct or legal violations, the Constitution also provides a separate process for removing a Deputy President due to physical or mental incapacity.
This process begins similarly to impeachment, with an MP moving a motion in the National Assembly. However, it then takes a different path, involving the Chief Justice and a specially appointed medical tribunal.
If the National Assembly supports the motion to investigate the Deputy President’s capacity, the Chief Justice steps in to appoint a tribunal.
This body consists of three medical practitioners, a High Court advocate, and a nominee of the Deputy President (or a family member if the Deputy President is unable to nominate). The tribunal has two weeks to investigate and report their findings.
The tribunal’s report is final and not subject to appeal. If they find the Deputy President capable, the matter ends there. However, if they determine incapacity, the National Assembly must vote to ratify the report. A majority vote in favor of ratification results in the Deputy President’s removal from office.
Throughout these processes, it’s worth noting that the Deputy President continues to perform their duties until a final decision is reached. This provision ensures continuity in governance while also respecting the principle of “innocent until proven guilty” or “capable until proven incapable.”
