Impeachment

The impeachment inquiry now going on in the US House of Representatives, and televised daily, is as gripping as any psychological thriller. Alfred Hitchcock’s famous film “Psycho” comes to mind. In the midst of the evidence of Marie Yovanovitch, the former US Ambassador to Ukraine, who was described by President Trump, in a telephone call to President Zelensky of the Ukraine, as ‘bad news,’ President Trump tweeted: “Everywhere Marie Yovanovitch went turned bad. She started out in Somalia. How did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavourably about her in my second phone call to him…”

Ms. Yovanovitch was prematurely dismissed as Ambassador, at the instigation of Rudy Guilani, President Trump’s lawyer, because she was seen as an obstacle to the President persuading President Zelensky declaring an investigation of former US Vice-President Joe Biden’s son, Hunter Biden and the Ukranian company, Burisma, of which he was a director, for corruption so as to assist President Trump’s re-election campaign. The tweet, hotly debated in the US as witness tampering, was not only shocking to lawyers and politicians alike, but revealed character traits of President Trump (“insecurity as an imposter” as described as Speaker Nancy Pelosi) that have been debated in the US media since his election as President.

Article 1, Section 2, Clause 5 of the US Constitution provides: “The House of Representatives…. shall have the sole power of impeachment.” Article 1, Section 3, Clauses 6 and 7 provide that: “The Senate shall have the sole power to try all impeachments….When the President of the United States is tried, the Chief Justice shall preside. And no person shall be convicted without the concurrence of the members present.” The Constitution goes on to provide that judgment in cases of impeachment shall extend no further than to removal from office, but the person convicted shall nevertheless be liable to indictment and judgment and punishment according to law. Article 11, Section 4 provides that the President, Vice President and all civil officers shall be removed from office on impeachment for, and conviction, of treason, bribery, or other high crimes and misdemeanors. It is not without significance that Speaker Pelosi recently accused President Trump of “bribery,’ which is one of the offences covered by the Constitution. “High crimes and misdemeanors” are not defined.

According to the constitutional framework, impeachment is the equivalent of filing the charges. The trial takes place in the Senate. The current speculation is that, like in the case of the impeachment of President Clinton in December 1998, support for impeachment in the Senate will not achieve the 60 votes in the Senate to convict President Trump. In the case of President Clinton, his popularity surged after a controversial impeachment. There is some speculation that the same could happen in the case of President Trump.

In Guyana, the President can be removed for violation of the Constitution or gross misconduct. Article 180 states: “If notice in writing is given to the Speaker of the National Assembly, signed by not less than onehalf of all elected members of the Assembly, of a motion alleging that the President has committed any violation of the Constitution or any gross misconduct and specifying the particulars of all the allegations and proposing that a tribunal be established under this article to investigate those allegations, the Speaker shall” cause the motion to be considered in seven days. If the Assembly is not sitting the Speaker shall summon it within twenty-one days and cause the motion to be considered at that meeting. No debate shall take place on the motion but a vote shall be taken. If supported by no less than two-thirds of all elected members, the motion shall be declared to be passed.

The Chancellor is then required to appoint a tribunal consisting of a chair and two members who are or have held offices as judges in Guyana or the Commonwealth. The tribunal shall investigate the matter, at which investigation the President is entitled to appear and be represented, and shall report to the National Assembly whether it finds the allegations sustained. If the allegations have been substantiated, the Assembly may, by a two-third majority of all elected members resolve that the President is guilty of violation of the Constitution or gross misconduct as is incompatible with his continuance in office and, “if the Assembly so resolves, the President shall cease to hold office upon the third day following the passage of the resolution.”

Guyanese would be forgiven if they were to believe that Article 180 was inserted merely for decorative reasons, because, while it is difficult in the United States, it is impossible in Guyana. Prior to the amendments in 2000-2001, the provisions were much more stringent. For example, three-quarters votes were provided for and the President could have dissolved the Assembly if Article was invoked.

Even if both the House of Representatives and the Senate were in the hands of one party in the US, impeaching the President would still be possible. In Guyana, one party has to have a two-thirds majority, and since in our Westminster-type system, that would be the governing party, impeachment would be impossible. A President can blatantly violate the Constitution by ignoring a no-confidence motion and face no consequences. That is one reason why constitutional change is so vital in Guyana.