Kenya: Kibaki has abused his office as president

Kenyan President Mwai Kibaki has grossly abused his office as president. This abuse is sufficient for his impeachment, but Article 145 of the constitution concerning impeachment is not yet in force. Grounds for impeachment include gross violation of the constitution and gross misconduct. Kibaki has committed both these offences. Powers under the constitution are given to the president, as to other state officers, for specific purposes; this constitution specifies powers of state officers more precisely than most constitutions. This was for a purpose. Kenyatta and Moi were notorious for the abuse of their office. The intention was that presidents would now understand and respect the limits of their powers and responsibilities. An important objective of the constitution is fundamental reform of institutions of government to stop abuse and corruption. The gist of my case against Kibaki is this. He is a state officer; the constitution prescribes the conduct of state officers; if state authority is exercised by a state officer contrary to the purposes and standards laid down, the officer is in breach of the constitution and must be dismissed and cannot hold public office again.

The presidency is a ‘state office’ (Art. 260). Chapter Six of the constitution is entitled ‘Leadership and integrity’. Many people regard this as the most important part of the constitution. It addresses a fundamental problem that has faced Kenya since at least independence: corruption and other abuses of state power. Public confidence in state institutions has collapsed. The constitution seeks to restore confidence in them, by making a complete break from the long-established practices of abuse of state authority by presidents, ministers, MPs and other state officials. It sets new norms of integrity and service to the people (‘responsibility to serve the people, rather than the power to rule them’). State power must be exercised in accordance with the purposes and objects of the constitution. The use of power must bring honour to the nation and dignity to the office. Decisions must be made impartially and objectively, ‘based solely on the public interest’, instead of being influenced by ‘nepotism, favouritism, other improper motives or corrupt practices’. More specifically, the president, as other state officers, must behave, ‘whether in public and official life, in private life, or in association with other persons’ so as to avoid ‘any conflict between personal interests and public official duties, compromising any public or official interest in favour of a personal interest, or demeaning the office’ he or she holds. He must protect constitutional values, including the promotion of human rights and national unity.

In his obsession with sabotaging the ICC (International Criminial Court) trials, he has massively violated the constitution. He has placed himself in a situation of conflict of interest when he decided that he would do everything to ensure that his political and administrative friends charged by Luis Moreno-Ocampo did not face the ICC trial. Here he may be trying to protect them, but even more significantly, as many suspect, he is trying to protect himself – lest his friends, in the throes of the trial, implicate him – after all, constitutionally they were expected to carry out his orders. His primary duty under the constitution is to cooperate with the ICC; this duty follows from international law applicable in Kenya. Instead he has been party to a deceitful video shown to the AU (African Union), which has brought shame and ridicule to Kenyans – so much for upholding our integrity and dignity. He hobnobs with the ICC accused, shown in newspapers joking with them, and relies heavily on the advice of Mathaura, Uhuru and Ruto in matters where their interests are implicated. It is hard to imagine a worst case of conflict of interest.

The state has no business to take sides in the ICC trials; the state is not on trial. Not unusually for him, he has reneged on his promise to cooperate with the ICC. He has illegally squandered large sums of public money lobbying for the deferral of the trials. Provincial administration under his office has coerced people into signing petitions against the ICC.

In a supreme act of cynicism (and poor judgment), his nominations for the CJ, AG and DPP were made to convince the AU of his commitment to legal reforms. The nominations have been widely condemned as unconstitutional, on account of both improper motive and unlawful procedure.

In summary, Kibaki deserves to be impeached because he has:

- (a) run the government as a personal fiefdom, not a public institution under the constitution, to protect the national interest
- (b) used state money for unlawful purposes
- (c) used the vice-president and ministers for purposes extraneous to their functions
- (d) shown little respect for international law, which is part of Kenyan law
- (e) neglected his official duties
- (f) pursued ethnic alliances instead of promoting national unity
- (g) nominated candidates for constitutional office without proper scrutiny for compatibility with Chapter 6
- (h) consorted and conspired with ministers who are charged with crimes against humanity
- (i) continued the politics of immunity
- (j) disgraced the office of the presidency
- (k) made Kenya a laughing stock of the world.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Yash Pal Ghai is a former chair of the now defunct Constitution of Kenya Review Commission.
* This article was originally published by the Nairobi Star.