Recently, the Parliament impeached Kenya’s Deputy President Rigathi Gachagua, proffering valuable lessons to Tanzanian beleaguered democracy.
Gachagua’s impeachment proceedings encompassed democratic values and principles that Tanzania can only envy in deafening silence and utter umbrage.
This article reviews the impeachment proceedings, offers some insights into the process, and provides a comparative analysis of Tanzania’s flawed democracy.
The impeachment of Gachagua will be remembered as a historical landmark where top politicians can be put to task for political accountability.
This is not, by any standard, a fleeting milestone in the democratic growth of a precocious nation. This impeachment proceedings was not a judicial process but a quasi-judicial one.
It was designed to prepare a charge sheet, culminating in an official censure of the sitting deputy president. After a duly legal process, the Kenyan Senate will decide whether Gachagua will be removed from office.
However, seeing how the Senate will absolve him now is hazy. Gachagua’s political future is over, save for judicial intervention.
It is no longer a matter of if he will be removed but when the Senate will axe him for good. Eleven charges, emphasizing criminal conduct, abuse of public office, and gross misconduct, were framed and overwhelmingly ratified by the Parliament.
The intricacies of the charges beckoned Gachagua as a narcissist who serially undermined his boss, President William Samuoi Ruto, privately and publicly.
Allegations of suspicious acquisition of properties worth billions of Kenyan shillings within two years of his becoming Vice President, his malevolent role in executing his deceased brother’s estate, his penchant for belittling women, his tribal divisive averments, and his reviled intellectual arrogance and haughtiness all converged to depict deputy president Gachagua as unfit for public office for the rest of his lifetime.
Some Kenyan constitutional scholars have erroneously argued that the strength of Gachagua’s judicial excursion would be the flawed public participation as embraced by the Kenyan parliament despite the court ordering a constituency-level public participation to replace the county-level one that the Parliament initially adopted.
The scholars also criticized what they deemed the futility of public participation, arguing that the parliament had placed a cart before horses.
They surmised that this kind of safari was a non-starter. The learned erudite opined that meaningful public participation required the participants to have access to all the evidential materials parliament had to make an informed decision on how they felt the parliamentary ruling on impeachment should have been.
They asserted that the purported public participation was a “charade” without all the information available to the participants before the parliament vote on impeachment proceedings.
I have serious reservations about such legal reasoning. Besides, Kenya has yet to legislate on public participation laws, just like Tanzania. So, while Kenyan courts have been nibbling on what such a law may look like, it is up to the Kenyan parliament to pen it down and get all the approvals. Then, one can lawfully fault the parliament for not following clear provisions of a law.
Since such a law is non-existent, it is both a smattering and a stretching to allege that public participation must commence after all impeachment proceedings have been wrapped up to allow citizens to make a fruitful contribution to the process.
Of more significance, parliament is not bound by public input. Had such a requirement been necessary, the Kenyan constitution would have predicated a referendum as the arbiter of impeachment proceedings.
As currently constituted, the Kenyan mother law empowered the bicameral parliament to be the final adjudicator of the integrity of the Kenyan political class. So, as useful as public participation is, its importance and limits should not be exceeded by reasonable measures.
In a similar matter in the US, the Supreme Court ruled that whether the then-presidential candidate Barack Hussein Obama was born in the US to qualify to run for the presidency was not a matter for courts to determine, knowing that the US constitution had empowered the US Congress as an arbiter of the integrity and legitimacy of the election of the president of America. The US Supreme Court dismissed the case based on the want of jurisdiction.
According to Kenyan parliamentary reports, 65% of those who participated in the public participation recommended that Gachagua be impeached and removed from office.
Could that overwhelming view have been altered had the participants had more information? It is very unlikely, akin to descending into a goose chase! Of note, all 11 charges were not news since the public gallery was suffused with them even before the impeachment proceedings had commenced.
Most participants expressed their views in a manner that showed they were very conversant with the charges levelled against Gachagua, and to say otherwise would not accord with the factual information.
READ RELATED: Inside Kenya’s Power Struggle: Will Gachagua Survive the Political Storm?
Some scholars scorned what they termed “new charges”, which surreptitiously crept in during the proceedings and were allowed to be argued through the back door.
The most talked about charge was of “demonizing and dehumanizing” women as prostitutes. This claim is a fallacy.
The issue was introduced to characterize Gachagua’s penchant for mistreatment of women in charge of violations of the doctrine of “separation of powers” in his unsuccessful efforts to remove a female judge who had presided over his graft case and had found him culpable of the felonies he was charged with.
It was very proper for the MPs to revisit Gachagua’s history of misogyny and women antipathy to establish the charge he was guilty of judicial interference to exact revenge against a female judge who had done her job of deciding cases irrespective of the social standing of those involved.
That evidential correlation was never entered in the charge sheet of eleven charges that had impeached Gachagua. The whole concerted effort of barreling the impeachment proceedings was highly misconceived.
Tanzania needs a public participation law, as the Mbeya High Court had discursively noted during the hearing of the DP World case.
The lack of a public participation law had permitted the Tanzanian Parliament to provide only one day for collating public opinion over the leasing agreement of Dar es Salaam port to the Dubai-based DP World conglomerate.
The court opined that one-day participation was insufficient, but there were no enforceable public participation laws besides Parliamentary Standing orders and regulations in which the court could not intervene.
We need public participation laws to show how, where, and for how long such participation can occur. Can meaningful public participation occur without such rights being made available where people dwell?
Can public participation be worthwhile when such an exercise is carried out only within the precincts of the Parliamentary buildings in Dodoma without deliberately depriving the majority of access through high entry costs?
Not everybody can afford the travel and accommodation costs to go to Dodoma or defray the digital entry barriers to participate in the process.
We must widen the statutory meaning of public participation to include official demos unencumbered with police invidious intrusions. What is the use of public participation if demos are a no-go zone?
Public participation is an integral component of enforcing public accountability, so any attempt to legislate it while shunning public demonstrations is disingenuous and a false start, to say the least.
The Kenyan constitution, with all its faults, remains a seminal moral, ethical, and legal compass that other African countries should strive to emulate.
This is strange because while tribalism is vilified, it looks like, out of the ashes of ethnic and tribal violence, Kenya is dusting up her act, steadying her ship, and ready to steer herself into an inclusive, cohesive, and peaceful nation that will always be a Tanzanian visceral aspiration but not, at this hour of calling, a truly desirous feat.
