High Court grants Rigathi Gachagua a lifeline

The High Court in Nairobi on Friday temporarily halted the Senate’s decision to remove Rigathi Gachagua from office as deputy president.

Justice Chacha Mwita issued an order suspending the Senate's resolution and barred Parliament from appointing a replacement until October 24, 2024, when the matter will be mentioned before a bench to be appointed by Chief Justice Martha Koome.

Justice Mwita referred the case to Chief Justice Koome to form a panel of more than three judges, citing the complex issues raised.

Gachagua had filed the petition to block Parliament from proceeding with the swearing-in of Interior Cabinet Secretary Kithure Kindiki as his successor.

President William Ruto submitted Kindiki’s name to the National Assembly shortly after the Senate voted to oust Gachagua. Gachagua condemned the impeachment process as a "sham" and a violation of the constitution, accusing MPs of relying on fabricated claims to remove him. He further accused President Ruto of orchestrating the process.

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Gachagua’s lawyer, Paul Muite, argued before Justice Mwita that the Senate acted as a "conveyor belt" in a premeditated scheme to oust the deputy president.

Muite criticised the Senate for proceeding with the hearing despite Gachagua’s hospitalization at Karen Hospital. “The Speaker and Senators were aware of Gachagua’s illness but still chose to proceed, denying him a fair opportunity to defend himself,” Muite said.

Lawyer Muite argued that there was no urgency to rush the Senate's proceedings, as no constitutional timeline required a quick resolution of the motion.

While the Senate upheld five of the charges against Gachagua and dismissed six, Muite contended that Gachagua was denied a fair hearing and had evidence to rebut the allegations.

“The applicant fell ill on October 17, 2024, during the hearing and was hospitalized. Despite this, the Senate proceeded in his absence, violating his right to a fair hearing under Article 50(1) of the Constitution,” Muite argued. He also criticised Senate Speaker Amason Kingi for allowing new affidavits not previously presented in the National Assembly.

Muite said that Gachagua’s right to health should have taken precedence over the Senate's rush to meet its deadlines. “There has been an evident urgency to replace the deputy president, potentially to frustrate his position before proper legal review,” he argued.

Gachagua also highlighted flaws in the impeachment process, including inadequate public participation. According to Muite, the National Assembly cannot proceed without the involvement of the Independent Electoral and Boundaries Commission (IEBC) and must ensure public input before approving a nominee.

“Following a deputy president’s nomination, there must be public participation in line with Articles 10 and 118 of the Constitution. The President and National Assembly are proceeding in clear disregard of these requirements,” Muite argued.

In a supporting affidavit, Gachagua claimed that the National Assembly used unfounded accusations, turning the impeachment into a trial against his family rather than a review of his conduct in office.

He said that MPs failed to provide evidence for their claims and that the process was biased, with National Assembly Speaker Moses Wetang’ula and Deputy Speaker Gladys Shollei taking a stance against him.

“The National Assembly and Senate violated my right to a fair trial. The impeachment was a biased process, conducted with the aim of removing me from office without meeting the constitutional threshold,” he stated.

He also raised concerns about discrepancies in public participation reports, noting that in some instances, more people were recorded as supporting his removal than those who attended the hearings. Gachagua argued that the public was not given the chance to hear his side, resulting in an uninformed process.

Gachagua maintained that the accusation he referred to Kenya as a “company” was misrepresented, clarifying that his comments pertained to sharing power according to pre-election coalition agreements. He said he had planned to address the Senate but fell ill during the lunch break, preventing him from participating in the proceedings.

“The impeachment process from start to finish was unconstitutional and rushed to ensure my illegal removal from office,” Gachagua argued, asking the court to declare the entire process null and void.

He requested that no one be allowed to assume the deputy president’s role until a final ruling is made, and that the court deem the impeachment and removal process unconstitutional.