Impeachment! Impeaching a sitting President is one of democracy’s greatest innovations representing an emphatic proclamation that the country cannot and should not wait for an election when an otherwise democratically elected President abuses his or her power or commits high crimes and misdemeanors during his rule. It is democracy’s safety-net and has only rarely been used anywhere. It appears to be counter-democratic. But it is necessary as a check on presidential excesses.
The power of impeachment originated in England but there, it only applied to high offices and officers like the judiciary and other appointees of the King but it did not apply to the King himself. The King was above the law. In the United States, the power of impeachment applied to the President, the King was overthrown as a consequence of the American Revolution of 1776 and it was declared that no man, including the President, would be above the law.
The alternatives to impeachment are rebellions, “people power” riots and insurrection, military coups and revolutions. Impeachment is soft and legal. But as John F. Kennedy once said, “those who oppose peaceful change make violent change inevitable”. Impeachment is therefore an imperative in order to avoid its alternatives. Or the continuation of the status quo of abuse of power, corruption, broken rule of law edifice, anarchy, lawlessness, repression, poverty, patronage, racism, tribalism, mass suffering and other cruel and inhuman forms of existence will be the order of the day. Human beings should not tolerate this latter state of affairs.
Contrary to a great many analysts, impeachment is not triggered by the President’s commission of high crimes and misdemeanours ‘stricto sensu’ but something more akin to ‘political offences’ that go to debase the very essence of democracy. In the case of Donald Trump, the articles of impeachment include :(1) abuse of power where Trump lobbied a foreign government in exchange for release of military aid and a coveted visit to the White House by that foreign leader, to initiate and announce publicly that it was investigating corruption allegedly involved-in, by Trump’s possible main challenger in the presidential election of 2020, thereby personally benefitting Trump rather than the Union or country called the USA, and (2) obstruction of Congress in the investigation of allegation number 1. No strict crime has been committed though obstruction of justice in count number 2 is a criminal offence but a President is immune from criminal charges while serving as President.
The USA innovated that obstructing electoral democracy is a most serious political offence there can be, when a President uses his office for personal gain above that of the nation. The corruption of electoral democracy entails that the President is not fit to govern and the nation cannot and must not wait until the next election to remove the president who has violated the very heart of democracy itself: the electoral process. The US figured that a President who corrupts the electoral process in one election cannot be trusted not to do it again. He must be removed in advance. Impeachment is a cleansing process.
The impeachment process is a political and not criminal affair and is the most politically partisan affair of them all. The Party in power will protect its President from being removed from power. The party in opposition would want the President removed from power. In the first impeachment case in US history of Andrew Johnson in 1868, the House of Representatives controlled by the Democrats, impeached Johnson but he was saved by one vote in the Senate controlled by the Republicans. Over a hundred years later, President Richard Nixon avoided removal from office through impeachment by resigning from office in 1974. President Bill Clinton was impeached in the House by the Republicans who controlled the House but was acquitted by the Democrats in the Senate because they controlled the Senate. The same outcome for President Trump but in reverse: impeached in the House but acquitted in the Senate.
How credible is this highly partisan political game where a President has put his personal interests above that of the nation and debases democracy but his Party in control of the Senate rises to defend and acquit him? This process is not cynical. The very process is a deeply necessary accountability mechanism. A message is sent to the President and to the nation that under a democracy, no one and no one is above the law and if a President puts his personal interests over and above that of the nation, he stands a chance of being removed from office. That very threat and the publicly televised process and reception of the evidence of the President’s commission of high crimes and misdemeanours is a great measure of personal and national accountability mechanism. Andrew Johnson survived by one vote. Johnson must have been shivering in his boots. Nixon resigned in distress and embarrassment and consequential loss of legacy. The power of impeachment is enormous. It is a shot in the arm of democracy.
Trump came to power on a pedestal and proclaimed that a President can do no wrong. It is reported and recorded that he has been the most obstructionist-to-congress President in US history. He is reported and recorded to have been the most loose-canon President in US history. Trump has been reported and recorded as behaving as if he was above the law. The power of impeachment finally caught up with him. It is possible that it will take some time before another President comes and behaves as if he was above the law.
I have one recommendation for reform of the impeachment process which leads to an acquittal in the Senate despite the commission of high crimes and misdemeanours and political offences by the President. The acquittal happens because of political partisanship. I recommend that the acquittal or conviction should be appealable to the Supreme Court, a forum that is reputedly neutral. Congress is not neutral in matters of impeachment but it produces the best evidence ever that can help a court acting judicially to render a better neutral decision in the service of democracy.
Appealing to the court is not repugnant to democracy under the circumstances. It is not a violation of the “political question” doctrine whereby political questions must remain in the realm of politics. Political election disputes are already taken to the courts where indeed political decisions by the voters can be second-guessed or corrected by the judiciary. In 2000 the Supreme Court of the US decided the Presidency of George W. Bush. Thus the judiciary is already involved and constitutionally mandated to engage in judicial review of political questions.
Finally, what is the state of the powers of impeachment in Zambia? What happens when a President commits ‘high crimes and misdemeanors’ in Zambia? Can the President of Zambia who puts his personal interests above that of the nation with proof beyond reasonable doubt or even on a balance of probabilities be removed from office by impeachment? If a Zambian President rigs one election or two, can he be expected not to rig the next one? What if the behaviour of the President or his statements or those of his lieutenants disclose an intention to rig the next election, should the powers of impeachment not be invoked to preserve the tenets of democracy? That is when the powers of impeachment partly get invoked in the US. Should it not be the same in democratic Zambia since the power of impeachment is enshrined in our constitution? Impeachment when the President has violated or intends to violate the electoral system, our essence of democracy is the greatest democratic tool that has ever been invented to preserve democracy itself. It behooves us to use it in the defence of democracy that we fought so hard to harbinger.
Dr Munyonzwe Hamalengwa teaches law and is the author of “Thoughts Are Free”.