On Friday 11, the High Court took a decisive step in addressing the legal challenges surrounding Deputy President Rigathi Gachagua’s impeachment.
Justice Lawrence Mugambi, presiding over the case, referred the matter to Chief Justice Martha Koome, requesting the appointment of a three-judge bench to hear and determine the constitutional questions raised.
Justice Mugambi’s ruling emphasized the gravity of the situation, stating:
“In my view, despite stiff opposition by the respondents, it is my opinion that these cases raised weighty constitutional questions that fall under Article 163 hence I am persuaded to refer them to the Chief Justice.”
He further underscored the court’s role in serving the public interest:
“The courts do not exist to serve the intellectual stimulation of the elites but to serve the public in matters of great concern and this one is one of those rare occasions that the court should arise to the occasion to serve the public with all the resources that it can summon.”
Legal Arguments: Constitutional Challenge
The ruling follows arguments presented by Deputy President Gachagua’s legal team, led by Senior Counsel Paul Muite.
Their submission, made a day prior to the ruling, highlighted the unprecedented nature of the case in Kenya’s constitutional history.
Muite argued that this impeachment process raises novel constitutional issues, as it marks the first attempt to impeach a deputy president since the promulgation of Kenya’s new constitution.
He emphasized the distinct nature of a deputy president’s impeachment compared to that of a president or governor, stating:
“It is not about the number in the National Assembly. There has to be proof of gross violation of the Constitution. The right to a fair trial cannot be limited. There are weighty issues in a presidential system.”
Procedural Concerns: Public Participation and Due Process
The legal team raised concerns about the procedural aspects of the impeachment process. They contended that the motion to impeach Gachagua lacked adequate public participation, a crucial element in Kenya’s constitutional democracy.
Furthermore, they argued that the deputy president should have been given an opportunity to respond to the eleven charges leveled against him before any public participation process commenced.
Muite elaborated on this point, suggesting that such a step would have allowed Kenyans to make more informed decisions about the impeachment process.
Next Steps: Senate Plenary and Legal Defense
As the case progresses to the Senate for consideration, the matter is set to be heard in a plenary session. During this critical phase, lawmakers will meticulously examine all eleven charges brought against the deputy president.
The process will afford DP Gachagua a four-hour window to present his defense, supported by his legal team.
This stage of the proceedings will also involve witness testimonies from both the National Assembly and Gachagua’s camp, allowing Senators to gather comprehensive evidence before making their decision.
