audits, research & drafting
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.In determining the burden of proof in impeachment proceedings has been debatable across the world, while contributing to the never ending debate Senator Miriam Defensor Santiago of the Senate of the Philippines while giving a keynote speech at the Joint Annual Convention Of The Philippines Society Of Hypertension said that, “an impeachment trial is a unique process, because it is a hybrid. Impeachment is both quasi-judicial and quasi-political. It is neither a civil case nor a criminal case. A criminal case is designed to punish an offender and to seek retribution. In contrast, impeachment is the first step in a process that tries to remedy a wrong in governance. It has been said that the purpose of impeachment is not personal punishment, but rather to maintain constitutional government, through the removal of an unfit official from a position of public trust.” The words quoted above are important in that they give the Kenyan Senate much needed direction on a question that has elicited unsettled debates depending which side of the road one lies
Therefore in determining the standard of proof, the question that comes to mind is the nature of impeachment proceedings i.e. are they civil, criminal or administrative. The standard of proof in civil cases in Kenya is on a balance of probabilities, while that of criminal cases is beyond reasonable doubt.
Proof beyond reasonable doubt is that degree of proof which produces a conviction in an unprejudiced mind which arises from moral certainty and not absolute certainty that the person to be convicted is guilty of a crime. One is therefore right to conclude that the end result of proving a case beyond reasonable doubt as is in criminal proceedings is a conviction. Bearing in mind the above it is therefore necessary to analyze the nature of each type of proceedings i.e. civil, criminal and administrative so as to determine the required standard of proof.
It is in order to conclude that impeachment proceedings are neither civil in nature nor criminal in nature. Impeachment proceedings are administrative in nature. Justice Joseph Story of the United States Supreme Court held that, “The design of impeachment is to remove the impeachable officer from office, not to punish. An impeachable act need not be criminal. That explains why the Constitution states that the officer removed shall be subject to prosecution in an ordinary criminal case” From the above quote it is clear that impeachment proceedings are not criminal in nature but administrative due to the simple fact that the end result is purely the removal of an officer from office.
Having determined that impeachment proceedings are neither civil nor criminal but indeed administrative in nature, the next question that arises is, what is the standard of proof in administrative proceedings?
Yale Law professor Charles Black Jr. who had published “Impeachment: A Handbook” in 1974. Prof. Black had written about “overwhelming preponderance of the evidence” as a suggested mid-level standard for impeachment cases. Black wrote: “Weighing the factors, I would be sure that one ought not to be satisfied, or anything near satisfied, with the mere ‘preponderance’ of an ordinary civil trial, but perhaps must be satisfied with something less than the ‘beyond a reasonable doubt’ standard of the ordinary criminal trial, in the full literal meaning of that standard. ‘Overwhelming preponderance of the evidence’ comes perhaps as close as can to denoting the desired standard.”
The words of Charles Black which we are swayed by, suggest that the standard of proof in administration cases should be high above a balance of probabilities as required in civil cases but should not reach beyond reasonable doubt as required in criminal cases. This assertion by Charles Black would be the most appropriate as it would guarantee the integrity of the impeachment proceedings

In the United States there has been debate on the burden of proof required in impeachment proceedings. The argument of beyond reasonable doubt i.e. the highest threshold in proving a case has been argued by those facing impeachment proceedings, on the other hand the members of the houses of senate and congress have argued for a lower standard of proof. The argument on the appropriate standard of proof in impeachment proceedings was played out in the 1986 Senate impeachment trial of Judge Harry Claiborne, where the attorney’s of the judge filed a motion to designate beyond a reasonable doubt as the applicable standard for the Senate in reaching its determination in support of the motion they argued that the constitutional language made it clear that an
impeachment trial was in the nature of a criminal proceeding; the standard of proof in all
criminal trials is beyond a reasonable doubt; historically impeachments have been
conducted in the nature of a criminal proceeding; and the consequences for the defendant
were grave, requiring the prosecutors to be held to the highest standard of proof, beyond
a reasonable doubt. The response of the House Managers in opposition to the Claiborne motion noted that the reasonable doubt standard was designed to protect criminal defendants who risked forfeitures of life, liberty and property. Such a standard was inappropriate, they maintained, because the Constitution limits the consequences of a Senate impeachment trial to removal from office and disqualification from holding office in the future, explicitly preserving the option for a subsequent criminal trial in the courts. The end result was that the Senate refused to impose the reasonable doubt rule as the Senate standard, individual members undoubtedly applied that standard in their own minds when weighing the sufficiency of the evidence in the Claiborne case.
In summary the United States Senate has traditionally left the choice of the applicable standard of proof to each individual Senator. While rejecting a motion to make the criminal standard the standard in the Claiborne impeachment, the discussion made clear that it was simply a decision to allow each member to make that choice and not a repudiation of the standard itself. Individuals might apply that or any other standard of their choice. A walk through history and an examination of the discussions of legal commentators may aid individuals in weighing their choices, but provides no definitive answers. Indeed, such an exercise is perhaps most useful in highlighting basic questions that members will want to ask themselves when searching for the appropriate standard.
I support the position of the United States and more particularly the position of Charles Black i.e. the standard of proof should be higher than on a balance of probabilities and lower than beyond reasonable doubt due to the simple fact that impeachment is an administrative function of the Senate and though quasi judicial, it is neither civil nor criminal in nature. We are also guided by Professor
Rotunda suggests that the appropriate standard of proof should be “clear and convincing
Evidence, this is an intermediate standard used in some important civil cases, more than preponderance and less than a reasonable doubt. Clear and convincing evidence is typically defined as that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegation sought to be established.”

Written by
Mweresa Eugene Sudi
Sudi & Associates