Why DP Gachagua is on slippery path

Deputy President Rigathi Gachagua arrives at the National Assembly for impeachment hearing on October 8, 2024. [Elvis Ogina, Standard]

Deputy President Rigathi Gachagua finds himself in a precarious position after the courts declined to suspend his impeachment process.

This decision may prolong his efforts to salvage his position as he navigates the complex legal and political landscape.

Five separate cases were Wednesday brought before Milimani High Court judge Lawrence Mugambi.

Tension was high as Gachagua’s legal team, led by senior counsel Paul Muite, sought reprieve to allow their client to concentrate on defending his position, especially after the National Assembly voted to impeach him on Tuesday night.

But Justice Mugambi declined to grant interim order, instead directing the cases would proceed for hearing.

Earlier in the day, Justice Mugambi had ordered the parties to appear in an open court at noon to discuss the application for interim orders and a request from the National Assembly to consolidate 22 matters challenging Gachagua’s ouster filed in different courts across the country.

His direction came after Justice Chacha Mwita and Justice Bahati Mwamuye also declined to issue conservatory orders in other six matters.

Instead, they directed that the cases be mentioned again on Tuesday to allow the Principal Judge of the High Court to make an administrative decision  on whether the 22 petitions would be consolidated.

Shocked by the turn of events, Gachagua’s lawyers urged Mugambi to provide proper direction, emphasising on the urgency of the matter.

Muite requested that Gachagua’s case be referred to Chief Justice Martha Koome to form a larger Bench of three, five or seven to address the serious legal questions at hand.

The team argued that the petitions raised significant legal questions that warranted an expanded panel.

They contended that public participation in the impeachment process was inadequate and that Gachagua was  not afforded a fair hearing before the Motion was tabled in the National Assembly.

His rationale was that the issues at hand were not only weighty but also set a precedent for future impeachment proceedings, particularly those involving high-ranking officials like the Deputy President.

“The public participation is wholly inadequate and against the guidelines set by the Supreme Court,” Muite stated.

But lawyers Peter Wanyama and Paul Nyamondi, representing the National Assembly, opposed the application, arguing that parliamentary proceedings were conducted legally and in accordance with established procedures.

They asserted that the issues raised had been overtaken by events as the National Assembly had already concluded the process.

Muite, however, dismissed this argument, asserting that actions taken contrary to the Constitution are null and void and that Gachagua should not be held accountable for the process’s shortcomings.

“The petition is not about current events. These are serious issues that will guide future impeachment processes,” he argued.

Lawyer Ndegwa Njiru highlighted that, according to Article 165 (3) (d) of the Constitution, the High Court has the authority to scrutinise the actions of any state organ to determine their appropriateness.

“While the court cannot stop the process, it can evaluate the legality of actions taken once the process is concluded,” he said.

The Senate opposed the request to have the case referred to the Chief Justice, arguing that the issues raised by Gachagua were not novel enough to warrant the appointment of a Special Bench to determine the lawsuit.

The Law Society of Kenya also supported Gachagua, asserting that the case raises serious substantive questions of law that need to be determined by a Bench.

The lawyers they contended that the petitions challenge the legality of the process, arguing that it violates constitutional provisions.

Justice Mugambi is set to rule on Friday whether the five petitions would be heard by an expanded Bench.