DP Gachagua faces Senate as court declines impeachment suspension

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

Deputy President Rigathi Gachagua was on Tuesday evening running against time in his fight to stop today’s Senate hearing of the Motion to impeach him.

Gachagua rushed to a three-judge Bench picked to hear his petitions after the High Court earlier rejected his prayer to stop the process.

His lawyer Paul Muite asked Justices Eric Ogola, Fridah Mugambi and Anthony Mrima to hear their prayer for conservatory orders before the Senate starts its proceedings today.

“It will be purely academic to appear tomorrow at 9am. Asking us to appear tomorrow morning, it will render our application nugatory,” argued Muite.

Gachagua also asked the Bench to block President William Ruto from submitting the name of a nominee for the Office of Deputy President to Parliament until the cases are heard and determined.

After a back and forth between the lawyers on if the court should sit at 6pm yesterday or at 9am today, the judges decided to hear them late in the evening.

Early in the day, Justice Chacha Mwita had ruled that while the High Court has jurisdiction to hear and determine his petition, it could not interfere with Parliament’s legislative authority. 

“The court cannot injunct the Senate from carrying its constitutional mandate on impeaching the deputy president,” he said.

“There should be a delicate balance in the respective mandates of different arms of government. Courts should strive to achieve this balance and respect what Parliament is constitutionally required to fulfill.”

Mwita explained that the Constitution has laid out the mechanisms through which governors, the president and his deputy can be impeached, noting that courts can only intervene in cases of outright constitutional violations.

He argued that the Supreme Court has previously addressed the issue of courts interfering with the business of tribunals and quasi-judicial bodies.

Mwita noted that Gachagua’s impeachment is a first in Kenya’s history and that Parliament should be given the opportunity to conclude the process.

He acknowledged that Gachagua’s case raises new claims regarding public participation, alleged violations of his constitutional rights, and the fairness of the procedure invoked by the National Assembly to impeach him last week.

In his last-minute effort to salvage his political career, Gachagua told the three judges that Justice Mwita had observed that the issues raised were weighty.

However, the National Assembly argued that it would be unfair to hear and make a ruling on the same issue that Justice Mwita had ruled on.

In the meantime, lawyer Ndegwa Njiru argued that the Independent Electoral and Boundaries Commission had not been constituted, hence the court should determine if the President could appoint a new deputy president.

The three judges directed that they would give each party seven minutes and give their verdict at 8am today. 

In the case before Mwita, Gachagua’s legal team had argued that the impeachment process was flawed, and that the DP was not afforded a fair hearing due to the limited time of 12 days. 

Muite contended that the standing orders guiding the impeachment contravened constitutional requirements for due process.

Further, Gachagua told the court that the impeachment Motion amounted to a “vicarious assault” rather than a legitimate inquiry, alleging that the proceedings were marred by intimidation and undue influence on MPs.

He accused the National Assembly of rushing the process to avoid judicial oversight, thus undermining constitutional principles.

The DP’s legal team criticised the impeachment as a personal attack on him and his family, claiming that the accusations did not meet the threshold of gross misconduct. 

Muite also argued that the Motion violated the legal doctrine of exhaustion, asserting that alternative remedies should have been explored before resorting to impeachment. 

He also claimed that the public participation mandated by law was insufficient and shambolic, depriving Kenyans of a meaningful opportunity to engage in such a critical process. 

To demonstrate this, Muite cited Keiyo South Constituency in Elgeyo Marakwet County, where he alleged that records indicated that 43 people participated in the exercise but the outcome indicated that 71 supported the impeachment while three opposed.

“Senators may choose to uphold the National Assembly’s resolution, and within an hour, a new Deputy President could be appointed,” Muite noted

The Senate and the National Assembly had opposed the prayer, asserting that Gachagua would have the opportunity to defend himself. 

“The Deputy President has not demonstrated that this petition will be rendered moot if the Senate is allowed to proceed with its constitutional mandate,” argued Senate Speaker Amason Kingi.