impeaching a president

Impeaching a president: Severing the social contract

Impeaching a president is a mechanism of democracy where the social contract between the people and the president is severed. The Constitutional Court in South Korea has confirmed the impeaching of the country’s president, Park Geun-hye from office following a corruption scandal The scandal revolved around the President being accused of conniving with her personal friend, Chol and a former presidential aide to pressure big firms to donate money to two foundations she had set up to back her policy initiatives.

The impeached president, Park is also accused of soliciting a bribe from the head of Samsung Group in order for the government to back a merger of two Samsung affiliates in 2015 which saw the current chairman, Jay Y Lee get a controlling stake in the company. A few hours ago, the head of Samsung was also arrested in relation to the same scandal, on charges of bribery and embezzlement and is in detention.

Impeachment proceedings were initiated by parliament whose December 9th, 2016 vote moved to impeach her over the corruption scandal. Her impeaching comes a few days after the world celebration of international women’s day and is a dramatic fall of South Korea’s first female president.  Park was the country’s first democratically elected president to be impeached. This means, according to the country’s laws that an election will be held in 60 days.

As such, Park no longer has any immunity as president and is most likely to face criminal charges for corruption and abuse of office. She will also vacate the presidential compound, “the blue house”.

It is amazing how the social contract is taken seriously in other countries. The people vote for the president, and when the president performs less than is expected, he or she is impeached by Parliament, the peoples’ representatives. It almost feels abstract.

That is not to say that our laws in Africa do not provide for impeaching procedures. They do. But will they ever be operational? For example, the constitution of Kenya provides for the removal of the president from office.

It can be done on two grounds:

  1. For the president’s lack of capacity
  2. By impeachment

For the president’s lack of capacity

Article 144 makes provision for removal of the president on grounds of incapacity. This process must be initiated by a member of the National Assembly, supported by at least a quarter of all the members. In the house, they must move a motion for the investigation of the President’s physical or mental capacity to perform the functions of office.

If the motion is supported by majority of the members in the house, then the speaker of parliament must inform the Chief Justice of that resolution within two days. Meanwhile, the president continues to perform the functions of the office pending the outcome of the proceedings.

After receiving the notice of resolution from the speaker, the Chief Justice or the Deputy Chief Justice, within seven days must constitute a tribunal comprising of the following persons: three persons who are qualified to practice medicine under the laws of Kenya, nominated by the body which by law is responsible for regulating the professional practice of medicine; one advocate of the High Court nominated by the body which by law is responsible for regulating the professional practice of advocates; and one person nominated by the President.

The purpose of the tribunal is to inquire into the matter and within fourteen days after constitution report to the Chief Justice and the parliament on their findings.  The report of the tribunal is final and not subject to appeal. If the tribunal reports that the President is incapable of performing the functions of the office, the National Assembly shall vote on whether to ratify the report.  If a majority of all the members of the National Assembly vote in favor of ratifying the report, the President shall cease to hold office.

The constitution however, does not make provision for what will happen if majority of the members of the national assembly do not vote in favor of ratifying a report which says that the president is not fit to hold office. One would presume that the report of the tribunal is binding on parliament and that the requirement to vote is a mere formality, one which must undoubtedly confirm the tribunal’s report.

By impeachment

Article 145 of the Constitution provides for removal of President by impeachment.  Again, a member of the National Assembly, with the support of at least a third of all the members, should move a motion for impeaching of the President on the ground of a gross violation of a provision of the Constitution or of any other law; that there are serious reasons for believing that the President has committed a crime under national or international law; or for gross misconduct.

If the motion is supported by at least two-thirds of all the members of parliament, the Speaker shall inform the Speaker of the Senate of that resolution within two days; and the President shall continue to perform the functions of the office pending the outcome of the proceedings.

Within seven 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 President; and the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.  The President has the right to appear and be represented before the special committee during its investigations.

The purpose of the special committee is to investigate the matter; and report to the Senate within ten days whether it finds the particulars of the allegations against the President to have been substantiated.

If the special committee reports that the particulars of any allegation against the President have been substantiated, the Senate shall, after according the President an opportunity to be heard, vote on the impeaching charges. If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the President shall cease to hold office.

Unlike the incapacity ground, impeaching a president does not involve the judiciary in the removal of the president from office. Impeaching is therefore a political function.  But both procedures are an assertion of democracy.

BY SAMALI BITALA

This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 2 of March 10th  2017

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