Impeached Deputy President Rigathi Gachagua on Tuesday told the court that President William Ruto, the electoral body, Parliament, and the anti-corruption agency conspired to kick him out of office.
Gachagua argued that his boss and the institutions violated the constitution. This even as the government asserted that Gachagua ceased being in office on October 17.
Gachagua fell short of calling his impeachment ordeal the happenings of a banana republic.
He argued that Parliament, Ruto, the Independent Electoral and Boundaries Commission (IEBC), and the Ethics and Anti-Corruption Commission (EACC) had conspired to swiftly but illegally kick him out and eventually find a successor.
This comes as Attorney General Dorcas Oduor, Senate and National Assembly defended the process and insisted that he ceased being a deputy president on October 17, 2021.
His lawyer, Paul Muite, told the High Court Judges Eric Ogola, Freda Mugambi, and Anthony Mrima that Gachagua’s impeachment before the National Assembly, removal by the Senate, and subsequent approval of Kithure Kindiki were an apparent show of imperial presidency.
He said Kenyans disapproved of that by enacting the 2010 constitution.
According to the impeached DP, the court can preserve the subject issue so that his client can remain in office without a vacuum.
He said that public participation was a sham, that standing orders giving the National Assembly 12 days to conclude impeachment was unconstitutional, and that there was a severe violation of the constitution, including evidence produced on the floor of the house.
“Here what is being preserved is the right, constitutional rights of the Deputy president who have the right who has challenged the impeachment for violating his constitutional rights. Seeks to have that impeachment vacated and quashed,” argued Muite.
While urging the three Judges to extend court orders issued by High Court Judges Chacha Mwita and Richard Mwongo, his other lawyer, Elisha Ongoya, satirically stated that for the first time, the Executive, Parliament, and constitutional commission were efficient.
He said a process requiring at least 74 days was done within six hours.
Nevertheless, Ongoya argued that there was an unprecedented hurry to beat the 2010 constitution.
Ongoya singled out the EACC, saying that between midnight, when the Senate decided to remove Gachagua from office and Kenyans woke up in the morning, the commission had already scrutinized Kindiki and given him a clean bill.
At the same time, he said IEBC also cleared him within same hours. Ongoya, however, pointed out that the IEBC is not constituted correctly as it does not have commissioners.
The Kabarak University law lecturer said that the Executive, Parliament, and the independent commissions conspired to beat public participation, due process, and accountability in record hours.
“Why did the letters of the constitution prescribe a 74 days maximum? Different analysts may give different interpretations. I beseech you to find whatever the scope of interpretations the following will fit into them. Number one, it must have to give the process optimum transparency. Number two, it must have to give the process optimum accountability. It must also give public participation some chance.”
“The process undertaken by the President of the Republic of Kenya, the Ethics and Anti-corruption Commission (EACC), which was mentioned in the President’s communication to the National Assembly, by the IEBC, which was also included in the communication, and by the National Assembly itself did not even pretend to have an iota of public participation,” argued Ongoya.
He further argued that the National Assembly first pretended to conduct public participation, but when the Senate took over and the National Assembly subsequently approved Kindiki, they abandoned public participation.
He stated that the numbers presented before National Assembly supporting the impeachment were mathematically wrong. Ongoya pointed out that in one constitucy, Keiyo South, the collated public participation report indicated that 40 people turned out, but 70 voted for his removal from office, translating for over 162 percent support.
Ongoya said that the only remaining beacon of hope in the country was the judiciary. He was of the view that it would be a travesty of justice for the Judges to first find that they have powers to intervene, then turn around and lift their orders in a bid to clear the way for Kindiki.
“I see this case as an opportunity for our constitutional order. While some may view it as a challenge to our democracy, I bring a message of hope. Let’s consider these proceedings as a chance to strengthen our constitutional framework. Our remaining beacon of hope is this Judiciary. My question to you, my Lord and Lady, is: will you drop the ball or carry it to the finish line?” paused Ongoya.
The lawyer said that Gachagua’s fate had already been decided, as the National Assembly gazetted a special sitting to approve Kindiki even before the upper house removed Gachagua.
Lawyer Tom Macharia, also for Gachagua, argued that ulterior issues were at the heart of the impeachment.
He said Senators decided to continue hearing the impeachment motion despite knowing that Gachagua had been taken ill through an acclamation chorus.
In what he termed as Kura ya makelele (a vote by noise), he said that before the lower house, hansard indicated that the MPs impeached DP because he ‘chewed maize and bananas and left it to children to clean, that he called a female MP prostitute, he called Mount Kenyans ‘ tukunia (sacks), Kunda ngutume (loosely translated as drink so that I send you) and komereras (bicycles) and lack of education.
Macharia said that what transpired before the August House was mob lynching.
“Kenya is not a presidential democracy. Kenya is not a legislative democracy. Kenya is a constitutional democracy. There was a lot things that were raised about a will that had nothing to do with the impeachment,” said Macharia.
According to Macharia, an argument that the impeachment was a political process is a precursor of totalitarianism.
“In response to the petitioners this morning, you'll hear the astonishing claim that the National Assembly, Senate, and Executive have an autocracy over political questions that cannot be challenged by this court. This is the textbook definition of dictatorship and autocracy,” he said.
In the meantime, David Mathenge, Peter Kamotho, Grace Muthoni, Clement Muchiri, and Edwin Munene, lawyers Kibe Mungai, alongside Evans Ogada and Ndegwa Njiru argued that it was illegal to appoint Kindiki without involving Kenyans.
Kibe said that it was of the view that Parliament violated a total of 30 sections of laws while impeaching Gachagua.
“Even if we assume the president did the right thing, this court should be concerned that when the impeachment was proceeding in the Senate, the National Assembly scheduled a meeting seven hours after the conclusion. Parliament cannot pass a law or approve Kindiki without the public's approval,” he said.
On the other hand, Ogada said that judges cannot overturn a decision made by their colleagues in the same court. He further stated that National Assembly.
Njiru told the court that IEBC’s CEO, Marjan Hussein Marjan, failed to tell the court that there were no commissioners in place. Njiru said that Marjan also did not discuss the President’s memorandum before the National Assembly, indicating that it had cleared Kindiki.
Njiru asserted that 270 MPs cannot impeach DP without hearing the voice of the 14 million voters.
“The people who elected their Deputy President have a legitimate expectation that he was legally and procedurally impeached if they followed the law to the letter and we feel satisfied, we would not have been before you,” argued Njiru.
Sheria mtaani, a human rights lobby group, urged the court to extend the orders. Its lawyer, Shadrack Wambui, said the court should look at the violations Gachagua will suffer if it lifts the orders.
Wambui said there are a lot of intricacies that tilt the scales of justice in favour of Gachagua, including prudent use of public resources.
“ The denial of the reliefs that we seek will automatically prompt the swearing of Kithure Kindiki to assume the office of Rigathi Gachagua,” said Wambui.
Danstan Omari, on the other hand, said that public participation was not done at the polling stations as was directed by Justice Mwongo. He said that the orders came late in the day and therefore, there was no sufficient notice for Kenyans to come out on Saturday.
Senior lawyer John Khaminwa said that the political manoeuvres have cost the country. He argued that Gachagua has earned 70 percent popularity in polls out of sympathy but the country is still reeling in problems. He further said that by freezing the impeachment, the court will have preserved the country.
“ I am submitting to you respectfully; you cannot afford to ignore them at all. It will be devastating if the court lifts conservatory orders,” he said.
According to Khaminwa, Gachagua would be suffering the same fate as Jaramogi Odinga and Joseph Karanja were it not for the 2010 Constitution. He said that the move to remove him meant that the country is going back to the days when Deputy President served at the President’s pleasure.
