Why High Court referred Gachagua petitions to CJ Koome

The High Court has referred five petitions challenging Deputy President Rigathi Gachagua's impeachment to Chief Justice Martha Koome, to empanel a multi-judge Bench.

In his ruling, Justice Lawrence Mugambi stated that the issues raised in the petitions are serious legal matters that require the input of more than one judge.

“In my view, these petitions raise serious constitutional questions under Article 163(e) and (d)(2) of the Constitution, and I am persuaded to refer the five cases to the Chief Justice for empanelment,” Mugambi ruled.

Judge Mugambi emphasized that the question of public participation in Gachagua's impeachment merits thorough examination by the appointed bench.

Gachagua, represented by senior counsel Paul Muite, expressed concerns that he had not been given adequate time to respond to the 11 allegations of gross misconduct and corruption during the National Assembly's public participation process.

“There was also the question of whether there was adequate public participation and whether the process should include the response of the person being impeached,” Judge Mugambi stated.

He added, “If the absence of including the response of the person being impeached compromises the public participation outcome, prejudicing their right to a fair hearing under Article 57 of the Constitution, these are substantial questions of law arising from this impeachment process.”

The judge also highlighted the need to determine whether the seven-day period provided for impeachment by the National Assembly was sufficient.

He noted that the standing orders relied upon in the impeachment process warrant judicial scrutiny.

Gachagua's legal team, led by Paul Muite pointed out that the limited seven-day timeframe provided by Parliament to transact the entire impeachment process saying it negatively impacts the quality of public participation. 

Judge Mugambi remarked, “The standing orders do not provide a mechanism for public participation, nor a framework for authenticating the outcomes of the process, which raises serious constitutional questions.”

He concluded that given the immense public interest generated by this unprecedented situation being the first time a Deputy President in Kenya faces impeachment, it is essential for a multi-judge bench to ensure a constitutionally compliant process that serves as a benchmark for future cases.

"Considering the immense public interest this matter has generated, as it is the first instance in Kenya's history where a Deputy President is facing impeachment and removal from office, it is my considered opinion that this case requires the input of more than one judge. This is necessary to ensure that the process is constitutionally compliant and serves as a benchmark for handling similar issues in the future," Mugambi ruled.

The judge further stated, "It is necessary for the citizenry of this country to understand the current state of the law that provides adequate opportunities for meaningful participation in the process of removing their Deputy President." 

Additionally, the court noted that the bench will address Gachagua’s concerns regarding the constitutionality of the current Parliament and its capacity to carry out the impeachment process.

Judge Mugambi noted that the voting patterns and numbers in the National Assembly regarding the impeachment motion also require examination by the Chief Justice’s appointed bench.

The court confirmed that its jurisdiction under Article 165 of the Constitution includes reviewing the evidence relied upon under Article 145 to support the allegations against Gachagua, whether established in the National Assembly or the Senate.

"I find given the nature of the impeachment proceedings starting from the national assembly all the way to the Senate and the massive public interest the matter has generated it will require the mind of more than one judge to determine the contentious issues," Mugambi ruled.

The decision follows Gachagua and four other petitioners urging the court to intervene and appoint judges to resolve the novel issues presented in their lawsuits. 

Gachagua has challenged the impeachment process, asserting that he was not afforded a fair hearing.

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

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 Parliament.

Muite emphasized that the process of public participation, which should have preceded the impeachment motion, was rushed and inadequate.

He argued that Gachagua deserved a fair hearing regarding the accusations before any motion was tabled against him in the National Assembly.

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