Parliament, the Judiciary, and how impeachment should work

This week Parliament challenged court orders, senators impeached a governor, governors challenged senators’ summons, and an MP’s election was declared null by the Court of Appeal. She challenged the court’s decision by attending to House businesses as usual, however, where she was allowed to intervene and contribute.

It has been an action-packed week, just like the old Chuck Norris and Jean-Claude Van Damme films. But this is even better, it looks like one of those films where all the stars were brought together, like The Expendables and R.E.D. (Retired but Extremely Dangerous).

We could be on the brink of shattering the rule of law, of becoming Gotham country. Gotham has been DC Comics’ fictional chaotic American city since 1940. Only Batman can save it.

Gotham City brought to the screen the ugliness of a society without law, where the powerful fill up by force and violence the vacuum created by lawlessness.

We cannot blame anybody but everybody. It always works this way in democratic societies, for democracy is essentially the rule of the majority. This is why democracy requires an educated and informed majority.

No matter how many fools one puts together, their decision will always be a big foolishness…and when this happens ‘democracy’ turns itself into a ‘damn-crazy’ system. The force of numbers will not improve the quality of the decision. Only the force of reason can help us.

LEGISLATIVE POWER SACRED

The Constitution made Parliament a powerful creature with two heads: one to legislate and one to oversee. The Constitution also granted these roles, by extension, to the county assemblies. So, the county assemblies mirror Parliament at the county level.

The legislative power of Parliament is sacred and cannot be challenged until the final output is on the table. No court can tell Parliament to stop debating a certain bill, but they can declare certain laws unconstitutional.

So, courts can challenge the final output of the legislative role of Parliament but they can’t direct Parliament on what to discuss or not discuss.

Now, the overseeing role of Parliament is a different matter: This role can be challenged through the judicial review of administrative actions. Impeachment is not part of the legislative role of the legislature, but of its overseeing role. Therefore, it can be challenged. The problem is when and how to challenge it.

Impeachment, as I’ve said in a previous piece, is a political process, but it has legal consequences. Impeachment is not part of the legislative function, but of the overseeing function of Parliament.

A well-designed impeachment procedure should involve the courts at an early stage. It should work like this: Once the county assembly finds sufficient reasons for impeachment the matter is referred to the Judiciary, where a three-judge bench will weigh the evidence and analyse the case to make sure that due process was followed.

The decision from this bench is communicated to the assembly, which then refers the matter to the Senate.

In this way both sides, political and legal, are catered for. This will usually result in a fairer decision, a water tight impeachment process, where the assembly takes care of politics and the judiciary looks after legality. After all, both the legislature and the judiciary are twin brothers with different jobs but similar vocation; the common good.

TIME AND EXPERIENCE

The problem is that our impeachment procedure was poorly designed and unless we do something we will have every impeachment being challenged in court. As it is now, impeachment is a lynch mob.

Law will improve with time and experience. The Constitution needs a number of touches here and there. Time will tell how many. Some keep suggesting we need new laws. But too much legislation is dangerous.

Thomas Reed already said it in 1886: “One of the greatest modern delusions is the hope that the evils in this world are to be cured by legislation.” Tacitus had also said long before that: “The more corrupt the state, the more it legislates.”

Perhaps this is why the best constitutions in Africa are found in Equatorial Guinea, The Central African Republic and Congo Brazzaville. They are model constitutions, but not role model countries.

In my humble opinion this week’s crisis goes beyond legality. It is a crisis of leadership. Some Senators, MPs and county assembly members are eager to show their might, some governors too…and some judges are being tempted. The executive is prudently watching from a distance.

Sense needs to set in…for when the bulls fight the grass…and its roots…the grassroots, suffer. Two uncomfortable virtuous are called into play here: magnanimity and humility. These are the virtuous of real leaders.

The marriage between Parliament and the Judiciary is going sour. This tension is not healthy. Sense, sensibility and true leadership are urgently called for.

We risk having every impeachment challenged in court.