The Kenyan Constitution provides for the process to remove or impeach the President in Kenya. There are several reasons why a President may be removed or impeached. The Constitution grants the National Assembly and the Senate the power to impeach the President.
The Constitution provides for two ways to remove the President. First through impeachment and second on grounds of incapacity. Articles 144 and 145 of the Kenyan Constitution provide for both ways.
One of the functions of the Senate is to determine any resolution to remove the President or Deputy President from office. Therefore, the Senate handles the process to remove or impeach the President in Kenya.
The Senate standing orders also expound on the removal and impeachment process.
A member of the National Assembly, supported by at least a third of all the members, may move a motion for the impeachment of the President-
- on the ground of a gross violation of a provision of the Constitution or of any other law;
- where there are serious reasons for believing that the President has committed a crime under national or international law; or
- for gross misconduct.
If at least two-thirds of the National Assembly members support the motion above-
- the National Assembly Speaker should inform the Speaker of the Senate of that resolution within two days; and
- the President should continue to perform the functions of the office of the Presidency pending the outcome of the impeachment proceedings.
Within seven days after receiving notice of a resolution from the Speaker of the National Assembly–
- the Speaker of the Senate should convene a meeting of the Senate within seven days 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 special committee appointed above should investigate the matter. It should report to the Senate within ten days whether it finds the particulars of the allegations against the President to have been substantiated.
Members of the Special Committee should take an Oath or Affirmation, as the Senate Speaker may prescribe, submitting that they will perform their duties honestly and with due diligence.
The President should have the right to appear and be represented before the special committee during its investigations.
The Special Committee may hear representation from the member who moved the motion in the National Assembly and other members of the National Assembly.
If the special committee reports that the particulars of any allegation against the President –
- have not been substantiated, further proceedings should not be taken under Article 145 of the Constitution in respect of that allegation; or
- have been substantiated, the Senate should, after according the President an opportunity to be heard, vote on the impeachment charges.
The Senate should vote on each impeachment charge of the Motion (e.g. vote ‘yes’ or ‘no’ for each charge).
If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the President should cease to hold office.
If no further proceedings take place when the allegations are unsubstantiated, the president continues to hold office.
A member of the National Assembly, supported by at least a quarter of all the members, may move a motion for the investigation of the President’s physical or mental capacity to perform the functions of the office of the presidency.
If a majority of all the members of the National Assembly support the motion above –
- the National Assembly Speaker should inform the Chief Justice of that resolution within two days, and
- the President should continue to perform the functions of the office pending the outcome of the removal proceedings.
Within seven days after receiving notice of the resolution from the Speaker, the Chief Justice should appoint a tribunal consisting of-
- three persons who are qualified to practise 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.
If the Chief Justice is unable to appoint the tribunal above, the Deputy Chief Justice should appoint such a tribunal.
If the President is unable to nominate the person he or she is required to nominate, the person should be nominated by–
- a member of the family of the President; or
- a close relative of the president, if no such member is willing or able to make the nomination.
The tribunal should inquire into the matter and, within fourteen days after the appointment, report to the Chief Justice and to the Speaker of the National Assembly.
The Speaker should ensure the report of the tribunal is tabled before the National Assembly within seven days after receiving it.
The report of the tribunal should be final and not subject to appeal. If the tribunal reports that the President is capable of performing the functions of the office, the Speaker of the National Assembly should announce so in the National Assembly.
If the tribunal reports that the President is incapable of performing the functions of the office, the National Assembly should vote on whether to ratify the report.
Lastly, if a majority of all the members of the National Assembly vote in favour of ratifying the report, the President should cease to hold office.