Why Courts will unlikely nullify Gachagua's impeachment

I cannot envy the courts with many hard cases on the impeachment filled.

However, the cases do not need to be hard cases, and both sides can agree on these three basic points that address the limited role of the court in an impeachment and the issue of interference with popular sovereignty.

In a comparative way, this article considers how the USA Supreme Court dealt with the impeachment of Nixon after the famous Watergate scandal and how Jacob Zuma's own ANC Party pushed him to resign.

The article concludes that the argument that impeachment undermines popular sovereignty does not arise in a case of constitutional democracy, where impeachment does not ultimately change the government or a ruling party after impeachment.

One of the reasons courts might be reluctant to set aside an impeachment is the high threshold provided.

Kenya's impeachment, as provided in Article 150 of the Constitution, is one of the most difficult impeachments in the world.

Usually, there are three levels of impeachment, and Kenya is the highest because it requires both the National Assembly and Senate, with both required to have supermajority.

The second level, or intermediate level, is the requirement of two section makers with no higher than a two-third threshold.

The lowest level of impeachment is “easy” if it requires fewer than the modal number of decision-makers to effectuate and simply one institution rather than both.

Article 259 of the constitution instructs judges to identify and locate procedural rights claimed by the former Deputy President, if any.

So far as possible, on the assumption that the Constitution is coherent and that all the provisions, including the one on impeachment, were created by a single author as a unit, and it is coherent with other provisions on rights, duties, justice and fairness.

In comparative impeachment law, the USA Supreme Court ruled that so long as the USA Senate followed the guidelines laid out for impeachment, then the extra demand for procedural rights is meaningless.

The USA Supreme Court did not mince its words, saying that they are very reluctant to intervene in a situation where the constitutional text clearly commits a function like impeachment to Congress and that Congress followed the laid out procedure to carry an impeachment.

A unanimous Court held that the question of whether or not the Senate rule violated the U.S. Constitution was non-justiciable since the Impeachment clause expressly granted that the "Senate shall have sole power to try any impeachments."

The clause laid out specific regulations that were to be followed, and as long as those guidelines were observed, the courts would not rule upon the validity of other Senate procedures regarding impeachments.

Chief Justice William Rehnquist observed that while the Supreme Court was the "ultimate interpreter of the Constitution," a matter would be deemed non-justiciable when there was "a constitutional commitment of the issue to a coordinated political department."

Importantly, the court might not agree with the arguments that impeachment interferes with the sovereignty of the people because 97% of modern democratic constitutions have provisions for removal via impeachment.

The issue of popular sovereignty does not arise upon impeachment because, unlike some countries, the Kenyan impeachment does not automatically trigger another election or by elections at all; it just deals with the misconduct and accountability of the one impeached but leaves the ruling party and elected institution intact. That way we are a country of institutions, not individuals, the same way it deals with the absence of individuals upon death or incapacity.

In conclusion, as argued above, it is difficult for the court to intervene because, in addition, the impeachment and possible return of Excellency Gachagua to the Office will not be a solution to the political deadlock he is facing with the cabinet and other institutions like the National Intelligence Service.

Remember that law is ultimately meant to create order and respond to society's relations, their politics, their culture, and reality.

Hence, Alexander Hamilton wrote in Federalist 65 that impeachment would be addressed at “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.

They are of a nature which may, with peculiar propriety, be denominated political, as they relate chiefly to injuries done immediately to the society itself.