09/10/2025
Impeachment, Integrity, and Eligibility: Why “Innocent Until Proven Guilty” Does Not Apply
By Jemedari Mwanawakiume
A growing argument in Kenyan political discourse suggests that an impeached leader, such Gachagua or Sonko or Waititu, should still be allowed to contest for public office on the premise that impeachment is neither judicial nor fair, and that under Article 50(2)(a) of the Constitution, “every person is innocent until proven guilty.”
While rhetorically persuasive, this argument is constitutionally and jurisprudentially flawed. It conflates criminal liability with constitutional accountability and disregards the distinct constitutional purposes of impeachment as a safeguard for ethical governance.
This analysis demonstrates why the presumption of innocence does not apply to impeachment proceedings and why the Constitution validly disqualifies an impeached officer from holding public office, unless that impeachment is overturned by a competent court.
✔ Nature and Purpose of Impeachment in Kenya
Impeachment in Kenya is a constitutional process of accountability, not a criminal trial. The procedure is provided for under:
Article 145 – Removal of the President;
Article 150(1)(b) – Removal of the Deputy President;
Article 181 – Removal of a County Governor.
The grounds for impeachment include:
Gross violation of the Constitution or any other law;
Where there are serious reasons to believe that the person has committed a crime;
Gross misconduct.
The operative phrase “serious reasons to believe” establishes a lower evidentiary threshold than “proof beyond reasonable doubt,” confirming that impeachment is not punitive but protective of public trust.
As the High Court observed in International Centre for Policy and Conflict & 5 others v Attorney General & 4 others [2013] eKLR, the purpose of integrity mechanisms under Chapter Six “is to ensure that State offices are held by individuals who bring honour to the nation and promote public confidence in the integrity of the Government.”
Thus, impeachment enforces constitutional morality, and not criminal guilt.
✔ Distinction Between Criminal Liability and Constitutional Accountability
Article 50(2)(a) guarantees the presumption of innocence only in criminal proceedings. Impeachment, however, derives its authority from Chapter Six (Leadership and Integrity) and Article 73, which impose higher ethical standards on public officers.
Article 73(2)(b) states that leadership and integrity are founded on:
“Objectivity and impartiality in decision making, and accountability to the public for decisions and actions.”
The courts have repeatedly affirmed that the enforcement of Chapter Six does not require criminal culpability. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the Court of Appeal held:
“Chapter Six does not demand criminal culpability as a prerequisite for disqualification from public office. It sets an objective standard of conduct expected of public officials.”
Therefore, while a person may be presumed innocent of a crime, they can simultaneously fail the integrity test required for continued service in public office. These are distinct constitutional thresholds.
✔ The ICC Analogy Is Legally Misplaced
Comparisons to the 2013 cases of Uhuru Kenyatta and William Ruto, who were allowed to vie while facing charges at the International Criminal Court, are misplaced.
Their eligibility was assessed in a context where no Kenyan institution had found them in violation of Chapter Six, nor had they been removed from any office.
Impeachment, by contrast, is a completed constitutional process through which a competent organ (Parliament or County Assembly) determines that an officer has violated the Constitution or grossly misconducted themselves.
Unless overturned through judicial review, that decision carries binding legal effect.
Thus, equating impeachment to unproven allegations before an international tribunal misunderstands the legal force of impeachment under domestic constitutional law.
✔ Effect of Impeachment on Future Eligibility
The Constitution and the Leadership and Integrity Act (No. 19 of 2012) expressly address the consequence of removal for breach of Chapter Six.
Article 75(3) of the Constitution provides:
“A person who has been dismissed or otherwise removed from office for a contravention of this Chapter is disqualified from holding any other State office.”
This provision is categorical.
An impeachment under Chapter Six, where a public officer is removed for gross misconduct, abuse of office, or violation of the Constitution, automatically disqualifies the individual from holding any other state office, including elective positions, unless a court of law sets aside the impeachment.
In Speaker of the Senate & Another v Attorney General & 4 others [2013] eKLR, the Supreme Court underscored that integrity standards under Chapter Six are enforceable independently of criminal proceedings, and that constitutional accountability mechanisms are an integral part of the separation of powers.
Similarly, in Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR, the High Court observed that Chapter Six “was designed to instill public confidence by ensuring that those who seek public office are persons of integrity whose personal conduct and record inspire public trust.”
✔ Political Character Does Not Negate Legitimacy
It is accurate that impeachment is conducted by political bodies, Parliament or County Assemblies, and can therefore be influenced by partisan considerations.
However, this does not invalidate its constitutional legitimacy. The framers of the Constitution deliberately vested these powers in representative institutions to ensure that ethical governance remains accountable to the people through their elected representatives.
The proper remedy for an allegedly unfair or politically motivated impeachment is judicial review, not an automatic reinstatement of eligibility.
The courts have jurisdiction to examine whether the process was consistent with the Constitution and the principles of natural justice, but until such a decision is overturned, it remains valid and binding.
✔ Conclusion
The assertion that impeachment is unfair or equivalent to criminal prosecution misinterprets the Kenyan constitutional framework.
The presumption of innocence applies exclusively within the criminal justice system, while impeachment is grounded in the principles of integrity, ethics, and public accountability under Chapter Six.
An impeached leader is not presumed “innocent” of misconduct; they are constitutionally disqualified from holding further state office unless a competent court annuls the impeachment.
Impeachment is not political persecution, it is a constitutional safeguard designed to preserve the moral foundation of leadership.
To conflate it with criminal standards of proof would strip Chapter Six of its essence and reduce integrity to mere legality.
Kenya’s constitutional order envisions leaders who embody both legality and moral credibility. Upholding impeachment as a legitimate tool of accountability is not an attack on democracy, it is its defense.
✔✔ Key Case References
1. Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR (Court of Appeal).
2. International Centre for Policy and Conflict & 5 others v Attorney General & 4 others [2013] eKLR (High Court).
3. Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR (High Court).
4. Speaker of the Senate & Another v Attorney General & 4 others [2013] eKLR (Supreme Court).
5. Republic v County Assembly of Embu Ex parte Martin Nyaga Wambora & Others [2014] eKLR (High Court).
[Author’s Disclaimer
The author is not an Advocate of the High Court of Kenya. He writes purely as a legal enthusiast with a deep interest in constitutional, judicial, and governance matters. The views expressed herein are the result of independent research and informed observation, and do not constitute legal advice or professional opinion.]
{I have tagged Hon. Babu Owino for his review and any additional legal or constitutional insights he may wish to offer. His expertise in legislative and constitutional matters is valued in ensuring accuracy and depth in such national discussions.}
