August 15, 2022

The impeachment of the Deputy President of the Republic of Kenya is guided by Article 144, 145, and 150 of the constitution (2010).

According to Article 150, the DP can be impeached on grounds of physical and mental incapacity to perform the functions of the office, and also on grounds of a gross violation of the law or in the case of gross misconduct.

The constitution also provides for the removal of the Deputy President in the case where there are serious reasons to believe that they have committed a crime under national or international law.

Once these grounds have been proven, the constitution directs that member of the National Assembly, supported by at least a third of all the members, may move a motion for the impeachment of the DP.

With 349 eligible voters in the national assembly (290 MPs, 12 nominated and 47 women representatives), the mover of the motion will need at least 115 backers for it to be tabled and debated upon.

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Gatundu South MP Moses Kuria speaking during a press briefing by Ruto-allied MPs on Wednesday, March 11, 2020, at Parliament Buildings

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For the motion to move to the next phase which is the Senate, the mover needs the backing of two-thirds of legislators, meaning that a minimum of 233 MPs will be required to approve the impeachment to go to the next phase.

This, however, the nominated member of parliament David Ole Sankok opined to kenyagist.com that it is impossible for the numbers given the number of MPs supporting the Deputy President.

“I can assure you that the threshold is too high to the extent that it is totally unachievable. To get a two-thirds majority in the national assembly and even the numbers to bring the motion to be discussed is not a mean feat.

“Those raising the motion were almost 70 and together with the Senators. Those in the presser against the impeachment for the DP were more than 150. This leaves you with 200, which is way below the majority, and yet some of our members were not even in the house,” he stated in reference to a presser calling for the DP to resign.

According to Article 145 of the constitution, if the impeachment motion is supported by at least two-thirds of the MPs, the Speaker of the National Assembly is required to inform the Speaker of the Senate of that resolution within 2 days.

While all that is taking place, the Deputy will still be serving in his official capacity pending the outcome of the entire impeachment process.

145 (3) further adds that within 7 days after receiving notice of a resolution from the Speaker of the National Assembly, the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the Deputy President.

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Senate Minority Leader James Orengo (left) and his counterpart Kipchumba Murkomen speaking at Laico Regency on March 10, 2020.

Senate Minority Leader James Orengo (left) and his counterpart Kipchumba Murkomen speaking at Laico Regency on March 10, 2020.

Simon Kiragu

kenyagist.com

The Senate shall then, by resolution, may appoint a special committee comprising 11 of its members to investigate the matter and report to the Senate within ten days whether it finds the particulars of the allegations against the Deputy President to have been substantiated.

The constitution grants the DP the right to appear and be represented before the special committee to give him or her a chance to give their version of the story in the case in which accusations have been substantiated.

In the case, however, where the arguments enforcing the impeachment of the DP have no basis, further proceeding will not be undertaken with respect to the allegations in question.

If the proceedings find grounds for impeachment, the Senate would proceed to vote and if at least two-thirds (45 of 67)of all the members of the Senate vote to uphold any impeachment charge, the DP shall cease to hold office.

Political activist Okiya Omtata, however, informed kenyagist.com that even if the impeachment motion goes through, the Article 145 of the constitution is more about the President but not too clear about the DP, and such ambiguity that can open a path for litigation with a view to seeking judicial interpretation of the clauses.

“Article 165 (d) grants the high court the jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of the question whether any law is inconsistent with or in contravention of this Constitution,” he explained.

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