Push and pull as High Court hands embattled DP Gachagua a lifeline

The battle between impeached Deputy President Rigathi Gachagua and Parliament seems far from over.

Just hours after the Senate upheld the decision by the National Assembly to send him home, the High Court handed Gachagua a lifeline after freezing the decision.

But after learning the development, National Assembly Speaker Moses Wetang’ula rushed to the same court in the afternoon, pleading with Justice Chacha Mwita not to issue the orders.

Wetang’ula argued that courts have no powers to interfere with Parliamentary processes and that Gachagua’s sacking was political.

“The doctrine of political questions precludes this honourable court from reviewing actions that the Constitution commits to another arm of government. Therefore, the petitioner’s request for review of impeachment proceedings is non-justifiable and ought to be dismissed in limine,” argued the National Assembly lawyer, Josphat Kuiyoni.

In his orders earlier in the day, Justice Mwita put on hold the appointment of a replacement for Gachagua.

“In the meantime, due to the issues raised in the petition and an application, and the urgency demonstrated, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner, the Deputy President of Kenya, including the appointment of his replacement, until October 24, 2024, when the matter will be mentioned before the bench to be appointed by the Chief Justice, for appropriate orders and action,” ruled Mwita.

Pick a bench

The judge sent the file to Chief Justice Martha Koome to pick a bench of three or more.

He said the case raised novel issues that required more than one judge to resolve.

Gachagua had moved to court to block Parliament from processing or swearing in Kithure Kindiki as his successor.

President William Ruto sent Prof Kindiki’s name to the National Assembly for processing to be Kenya’s second in command hours after the Senate voted to remove Gachagua from office.

While terming the impeachment process by the National Assembly and subsequent removal from office as a sham and a mockery of the Constitution, Gachagua claimed that Members of Parliament relied on fabricated and false claims to hang him politically.

Gachagua accused Dr Ruto of having a hand in the impeachment process.

He said the mover of the impeachment process, Kibwezi West MP Mwengi Mutuse, the witnesses he called, and the Ethic and Anti-Corruption Commission (EACC) never substantiated any of the charges against him.

Gachagua’s lawyer Paul Muite further argued that the Senate was just a conveyor belt in a grand scheme to kick his client out of office.

The senior counsel said that despite the Speaker of Senate Amason Kingi and senators being aware that Gachagua had been taken ill and rushed to Karen Hospital, they declined a plea to allow him to get medical attention before he could take to the witness stand to tell his side of the story.

Muite further argued that there was no need to rush the Senate proceedings, as no timeline is set for the plenary to conclude and decide a motion.

Senators upheld five charges against Gachagua and dismissed six.

However, the impeached DP asserts that he was condemned unheard as he had evidence to rebut the allegations.

“The applicant fell ill in the course of the hearing on October 17, 2024, as a result of which he was rushed to hospital and was admitted for urgent medical attention. In a surprising turn of events, the Senate voted to proceed with the hearing in the absence of the petitioner thus denying him his right to a fair hearing. The Senate unconstitutionally conducted itself and denied the applicant the right to a fair hearing. His rights under Article 50(1) of the Constitution were breached,” argued Muite.

According to the lawyer, Kingi violated the Constitution by allowing new affidavits that had not been presented before the National Assembly to be admitted.

He termed the session as a mechanical and or methodical move that was meant to frustrate Gachagua from telling his side of the story.

He asserted that the embattled politician’s right to health superseded the Senate’s rush to beat the deadline.

“There has been a demonstrated urgency to remove the Deputy President from office and install another person, which may be done hurriedly with a view of frustrating the Deputy President, hence the urgency to hear this petition and the application,” argued Muite.

According to Muite, the National Assembly had already gazetted Friday for a special sitting to process the nominee.

He nevertheless argued that the August House cannot move without the Independent Electoral and Boundaries Commission(IEBC) having commissioners.

Muite further argued that the commission should vet the nominee’s suitability and conduct public participation before the person is given a green light to occupy the office.

“Upon the nomination of a Deputy President for submission to the National Assembly for voting, the nominee should be subjected to public participation in line with the provisions of Articles 10 and 118 of the Constitution. In addition, since the National Assembly would be exercising delegated powers, the Constitution requires the nominee to be subjected to public participation before voting. There is a clear indication that the President and the National Assembly are proceeding in blatant disregard of these constitutional imperatives,” said Muite.

In his supporting affidavit, Gachagua stated that the National Assembly passed the impeachment motion on grounds not set in motion. He said that MPs turned the session into a trial of his family without giving his children and spouse a chance to be heard.

“Members of the National Assembly supported the motion on grounds other than those set out in the motion. The impeachment was instead converted into a vicarious assault on family rather than the investigation of constitutional violations by a public servant,” said Gachagua.

According to him, MPs trivialized the session and lowered the threshold for seeking accountability from public officials to normal human interactions, including inheriting property from a relative and owning a family company.

Not accurate

He claimed that he was a sheep tried in a court of hyenas. Gachagua stated that he could not have found justice in a house where speaker Moses Wetang’ula and Deputy Speaker Gladys Shollei had already taken a position that he should be impeached.

“The first respondent and the Deputy Speaker of the National Assembly took a partisan position against me before, during and after the tabling of the impeachment motion in violation of the provisions of Articles 47 and 50. Consequently, I was not accorded a fair trial as required under the Constitution,” he claimed.

Gachagua also claimed that the National Assembly conducted a sham public participation. He said that in one constituency, the collated report indicated that 40 people turned out, but 70 people voted for his removal from office, translating for over 162 per cent support.

He argued that Kenyans had not been educated on how to process the questionnaires nor were they given his side of the story.

“There are glaring errors that are clearly indicative of a process that is not accurate or verifiable,” Gachagua argued.