Gachagua impeachment has set us into uncharted legal waters

Former Deputy President Rigathi Gachagua arrives at the Senate chambers for the second day of hearing of his impeachment on October 17, 2024. [Elvis Ogina, Standard]

Politics and rationale are truly strange bedfellows. Many months ago, we began noticing and experiencing the political rift between the president and the deputy president widening.

Initially, they both denied it and blamed the usual scapegoat, the media, for seeing too much smoke where there was none. This did not stop the rift however, it continued until the gap between them became a huge valley that neither could jump and crossover to join the other.

Following the Gen Z protests, the famous two press conferences, one in Nairobi and the other in Mombasa confirmed to us that the two had arrived at a place of irreconcilable differences and divorce was not only imminent, it was the only possible end to the intractable bitterness between them.

The talk about impeaching the DP and replacing him with the Interior CS began a long time ago and it was only a matter of time for the president to establish where he could get the numbers to execute this agenda. He bided his time and got lucky.

The DP knew and told us publicly as often as he could that his relationship with his boss was precarious and he was sure it would perish before five years and began asking his boss to allow him to complete their term together. He attributes his “persecution to being a truthful man.” As a truthful man, he had told Kenyans, shortly after they came to power that, Kenya was like a company by shares, the shareholders being those who had voted for him and his boss.

At the time, the clergy, the media, civil society and most of us were up in arms, reminding him and his boss that were Kenya a company by shares, then each Kenyan would hold one equal share according to the Constitution. However, the DP insisted that those who voted will get “to eat first” and the rest can get leftovers if any remained.

This has since come to pass unabashedly with lists of appointments to public positions of people mainly from two ethnic communities, continuing to do rounds in social media for all to see and confirm if inclined to. This did not appear to bother the government much then, until it was time for severing ties with the erstwhile DP based on irreconcilable differences with his former boss, who has maintained circumspect silence on the matter.

Under the 2010 constitutional dispensation, the only legal way to sever the ties with the DP is impeachment on the grounds provided in Article 150(1) using the procedure provided in Articles 144 and 145 on the removal of the President, with the necessary modifications, though unclear what was modified; what is clear, the DP was impeached at supersonic speed.

The merits and demerits of the grounds for impeachment, the methodologies used and whether requisite thresholds were met or not will be subject to court cases, which may go all the way to the Supreme Court. The issue of concern for us is how this affects governance, accountability, and fidelity to the Constitution by our MPs and by the Executive. Can citizens trust them with our Constitution? Reverend Timothy Njoya and others went to court years back where the courts established that the Constitution is a product of the sovereign power of the people, who delegate/donate it to their representatives from article 1 of the Constitution all through to be exercised in accordance with the Constitution and it is retrieved by their representatives through impeachment of the president/deputy president, governors/deputy governors and by directly exercising citizens right of recall of elected representatives under article 104.

The MPs have made the direct exercise of the right of recall almost impossible but have now made impeachment much easier, faster and more efficient.

Some may argue, by making impeachment of the president/deputy president this easily usurps the free will and the sovereign power of the people; these are uncharted waters, and only time will tell.

It was interesting watching the same members of the National Assembly who had already impeached the DP fervently making a case for his impeachment by senators who listened attentively and voted to impeach as was expected.

We have observed the Executive and the Legislature at play, and now we await the Judiciary with bated breath, to interpret and help preserve the integrity and probity of our Constitution.