The role of law in creating order in DP Gachagua's impeachment

The Parliament's power to impeach is best understood in the context of check and balance, with the constitution having elevated the Office of 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 even what to do upon the vacancy in the office of the Deputy President Nondelegation doctrine prohibits the 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. The law reflects the intellectual, social, economic, and 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, the Law is there to manage relationships. The court must remember that according to Aristotle's definition, Law is order. There must be an order. Benjamin Cardoso for the law is the expression of the principle of order to which men must conform in their conduct and relation as members of society. In fact, the words law and order have 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 can 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 designated to that branch and the decision is supported by other factors which 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, the threshold for impeachment is raised to a two-thirds majority and concurrence of both houses. 

 In interpreting the law and its spirit; is that the law should be tailored to the particular customs, manners, religion, commerce, political system, the climate of each country, the quality of its soil, its situation and extent, to the principal occupation of natives. The 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 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 of Kenya and deal with our humanity issues. Our nationhood and humanity are 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 ethnicised was of distribution of national resources?  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 proved for National unity and equality of citizens. 

Dr Ojwang is a constitutional law lecturer