Can Gachagua, Mwangaza vie? AG rejects need for new Supreme Court advisory

As next year's elections near, politicians will stop at nothing to recapture power.

It is even a bigger battle for the leaders who have been pushed out of power through impeachment. Are they eligible to vie?

This is the big question whose answer could kill or revive their political lives.

Attorney General has said that the question of whether an impeached person can seek an elective seat is neither novel nor does it warrant the Supreme Court’s intervention.

The Supreme Court directed Dorcas Oduor to advise on the eligibility of an impeached State officer to seek a fresh mandate before their cases are settled within 21 days.

Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Isaac Lenaola, William Ouko and Mohamed Warsame unanimously agreed it was important for the Meru County Assembly to first seek advice from the AG before invoking the court’s authority.

“Rule 53 of the Supreme Court Rules 2020, together with the list of authorities cited by the applicant, clearly set out the requirement to seek the Attorney General’s advice before filing a Reference. Such advice may resolve the question before us to the applicant's satisfaction, thus saving precious judicial time. The devolution system as presently designed also does not preclude the Attorney General from giving advice, particularly in a matter of public interest,” the bench headed by Justice Mwilu.

Following the order by the apex court last month, the AG wrote to the County Assembly on August 6.

She first laid out the importance of having advisories. According to the AG, they are meant to avert future constitutional crises and preserve harmony between government institutions.

She was of the view that advisories are, however, not meant to resolve disputes, which ought to be determined through the normal litigation process. She insisted that it must not be adversarial.

 On the implementation of Chapter Six, the AG was of the view that the issue, as framed, would determine the fate of persons who had been impeached when it comes to future elections.

“ The present reference, although presented as an application for constitutional guidance, seeks judicial pronouncements on matters that directly affect the legal rights of identifiable categories, including State officers removed from office through impeachment or other disciplinary mechanisms under Chapter Six,” she observed, adding that the issue is rather abstract and hypothetical.

She argued that the argument on whether Articles 99 (3) and 193 (3) suspend the consequences of an impeachment can only be dealt with when such an issue comes up in litigation.

After former Deputy President Rigathi Gachagua was impeached, Law Society of Kenya (LSK) President Charles Kanjama argued that he was still fit to vie. Kanjama cited Article 99(3) of the Constitution. He explained that ongoing appeals shield a candidate from immediate disqualification.

“So long as you are having an appellate process to challenge the way you are removed from office, you are entitled to continue running for office,” Kanjama said.

Article 99(3) of the Constitution provides that a person is not disqualified from being elected as a Member of Parliament, despite falling under constitutional disqualification grounds, unless all avenues of appeal or review relating to the relevant decision have been exhausted.

The provision is designed to safeguard political rights by ensuring that individuals are not barred from seeking elective office while court challenges remain active.

This, he meant, a candidate who has been removed from office or affected by a legal decision can continue pursuing political ambitions until the appellate process reaches its conclusion.

“The inconsistency on the question of right to a fair hearing and the consequences of the violation of the right to a fair hearing will allow the Court of Appeal or the Supreme Court to clarify the situation."

"The fact that there has been a finding of violation of the right to a fair hearing by the High Court then gives the Court of Appeal greater ability to make a finding in favour of Rigathi Gachagua,” he added.

Echoing similar remarks, Constitutional lawyer Bobby Mkangi said Gachagua remains eligible to contest so long as the legal process has not been fully exhausted by the time candidates are cleared for an election.

“Yes, he can vie for office if he chooses to, and if, by the time the IEBC is declaring candidates, all constitutionally available remedies have not been exhausted if utilised,” said Mkangi

However, the AG in the advisory said that Gachagua’s case and ex-Meru County Governor Kawira Mwangaza’s appeal were still live before court, hence it would be prejudicial to decide whether their fates had been sealed or not.

She insisted that although the county had approached the court, the issues at hand concerned the Independent Electoral and Boundaries Commission (IEBC) as it was questioning whether one could be re-elected or not. She also noted that it also involves the Ethics and Anti-Corruption Commission (EACC) for clearance.

“ The present reference seeks clarification on issues that have already received significant clarification on issues that have already received judicial treatment rather than raising wholly novel constitutional questions,” she continued.

The AG argued that following the Supreme Court’s judgment in former Nairobi Governor Mike Sonko’s case, it is clear that an impeached person cannot hold elective or public office. She further argued that this position was further cemented in the ex-Kiambu Governor Ferdinand Waititu’s case.

“ A definitive advisory opinion on these questions would inevitably shape or constrain the adjudication of future disputes involving parties who are neither before court nor allowed to be heard. Such an outcome would be inconsistent with the adversarial safeguards that underpin constitutional adjudication and would risk undermining procedural fairness,” said Oduor.

She summarized that the opinion sought did not raise any novel issue, and did not properly invoke the Supreme Court’s power to give an advisory.

This comes as the Senate moved to the Court of Appeal to challenge the High Court’s decision on Gachagua’s impeachment.

Judges Eric Ogola, Anthony Mrima and Freda Mugambi ruled that the Senate had violated Gachagua’s right to a fair hearing and directed it to pay him Sh 50 million.

In their judgment, the trio held the Senate could not abandon its decision to hear the two parties in person when it opted to consider Gachagua’s written submissions without telling his side of the story.

 The court noted that none of the Senators disputed that Gachagua had fallen ill. Instead, she said, the Senate, despite having an opportunity to adjourn, opted to proceed without hearing him.

The trio ruled out reinstating Gachagua, saying the Constitution contemplated finality of Senate’s vote to impeach. They, however, observed that there was a dilemma about what to do when courts find a violation of the Constitution in the process.

The Judges also weighed in on the arguments from the plenary and special committees. They said the upper house had the power to choose between the plenary and the special committee way, but only after hearing and considering the charges. Further, in the judgment read by Justice Mrima, it was said that, from the Hansard, there is no evidence to show that Senators debated the same or the validity of the charges before deciding whether to subject the charges to a special committee or have the same settled by the plenary.

The judge added that the upper house is not a conveyor belt of issues emanating from the lower house. He further noted that the word may is anchored on the consideration of the Senate to interrogate the charges or not.

Justice Mrima said that the court could not approve the position taken by the upper house.

“ The record shows that once the motion was laid before the House, the charges were read out, and the supporting evidence standard, that was all. No resolution admitting the motion to a full hearing was made. The Senate, instead, proceeded directly to address itself to the issue of the charges. In our view, we will not have approved this,” he said.

However, in its Appeal, the Senate argued that it was impossible to tell whether he was unwell or not as there was no expert brought before them to ascertain it.

The upper house of Parliament said that Gachagua had been given a chance to tell his side of the story but did not show up.

“Having found that the first appellant had granted the first respondent an opportunity to be heard, the Learned Judges erred in fact and in law in faulting the second appellant for proceeding with the impeachment proceedings after the first respondent failed to appear, notwithstanding that the second appellant had afforded the first respondent a reasonable opportunity to attend and be heard, including additional time granted at the request of his

advocates and that the second appellant was under an obligation to conclude the proceedings expeditiously,” argued Senate’s lawyer Moni Mukele.

He also said that the court had no powers to question the Senate’s decision to move on with the impeachment despite Gachagua’s lawyers citing his illness.

“The learned Judges erred in fact and in law in finding that the first respondent's absence was justified on account of illness, notwithstanding that no evidence was placed before the 2nd Appellant at the material time to substantiate the alleged illness or to support the request for adjournment,” argued Mukele.