Senate sealed Gachagua's fate, AG tells court

Attorney General Dorcas Oduor has told the High Court that two judges erred by giving orders freezing Deputy President Rigathi Gachagua’s impeachment process and the assumption of office of Kithure Kindiki.

Her lawyer, Prof Githu Muigai, argued that Gachagua stopped being a DP immediately after Senate Speaker Amason Kingi gazetted his removal from office.

At the same time, Muigai told judges Eric Ogola, Freda Mugambi and Antony Mrima that the National Assembly appointed Kindiki to fill the void left in the office of the Deputy President.

“Every lawyer in this courtroom is entitled to his opinion on what the law is and not the facts. What were the honourable judges conserving? What did they conserve? There was nothing to conserve,” he said.

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While arguing that Rigathi acknowledged in his reply that there is a vacancy. “There are several judges who were approached to give conservatory orders, including this Bench, but you said that they were overtaken by events. That news might not have reached some parts of the country,” he argued.

Githu termed the impeachment a legal and a political process.

“That is why the framers of the Constitution do not say the Deputy President will not be brought to Supreme Court for violation of the Constitution,” said the former AG.

Present evidence

He was of the view that if the court found there was a violation, the court could, in the end, order Gachagua to go back to the office as Kindiki returned to his Interior Cabinet Secretary position.

On the other hand, Prof Tom Ojienda, for the Senate, claimed that Gachagua was presented with an opportunity to be heard, arguing that his lawyer did not present evidence from doctors to show that he was in hospital.

“The petitioner grabbed the carpet under his own feet. He decided to ruin his own case by not being reachable by his team,” he said.

Ojienda said that it was against the public interest to freeze the impeachment process.

The Kisumu Senator also argued that in the event the court finds that Gachagua’s rights were violated, he can be compensated in terms of money.

Another lawyer, Muthomi Thinakolu, said that the High Court has no powers to hear cases emanating from the impeachment of a president or his deputy.

According to him, Gachagua ought to have gone to the Supreme Court but asserted that Kenyans in 2010 decided there should be no judicial intervention if the two were impeached.

He said the Senate’s decision is final. National Assembly lawyer Benson Milimo said that the House conducted an unprecedented public participation.

“It has never happened before,” he said adding that over 224,000 Kenyans volunteered their views. He alleged that 65 per cent were in support of the Motion.

He stated that data gathered by Gachagua relating to the Keiyo South constituency was incorrect. He continued that there 820 responses in the constituency and those in support were 807.