Gachagua’s legal team argued that there are weighty and serious questions of the law that need a bench of three judges.
Deputy President Rigathi Gachagua is committing to putting everything on the line to save his job even as he waits for the outcome from the Senate regarding his impeachment case. Still, the team of lawyers he assembled over the past weekend is preparing for what is set to be a grand legal showdown.
This is after 281 members of parliament on Tuesday, October 8 voted in support of Gachagua’s impeachment motion surpassing the threshold set by the Constitution of Kenya which requires at least 233 MPs for the motion to proceed to the Senate.
On Wednesday, October 9, Gachagua’s lawyers led by senior counsel Paul Muite and Elisha Ongoya received potentially pleasant news of the High Court set to rule on Friday, October 11 on whether to refer Gachagua’s impeachment case to Chief Justice Martha Koome, a matter that could see the case elevated to the Supreme Court of Kenya.
Deputy President Rigathi Gachagua (centre) arrives at Parliament Buildings on October 8, 2024 to present his defence on his impeachment motion. /NATIONAL ASSEMBLY
It is there that CJ Koome, should the ruling necessitate the above, will be expected to constitute a bench comprising of uneven number of judges, that is either three or five judges, to hear and determine the matter.
Gachagua’s legal team argued that there are weighty and serious questions of the law that need a bench of three judges. “It’s not about numbers in the National Assembly. There has to be proof of gross violation of the constitution,” lawyer Paul Muite posited stressing that Article 1 of the Constitution of Kenya bestows all sovereign power to the people of Kenya who elected the president and his deputy.
While seeking the referral, Muite and colleagues told the court that the petitions by Gachagua and four others argue that the public participation was not done properly and the DP was not given a fair hearing at the National Assembly before the impeachment motion was tabled.
Muite argued that the public participation held last week ought to have been done before the impeachment motion was placed before members of the Parliament and not days after, adding that Gachagua should have also been allowed to defend himself against the accusations against him before the impeachment motion was tendered in Parliament.
“The public participation is wholly inadequate and against the guidelines given by the Supreme Court earlier,” Muite argued. However, lawyers Peter Wanyama and Paul Nyamondi, who are representing the National Assembly, opposed the application stating that the proceedings of Parliament were legal and conducted according to the law and procedures.
The two said the issues raised in the petitions before the court have been overtaken by events since the National Assembly has already concluded the impeachment, adding that the National Assembly has no powers to go back to the process of impeaching Gachagua that was concluded Tuesday night, October 8.
But Muite dismissed the arguments saying the issues are not related to the current events and are very live because anything done contrary to the Constitution is a nullity and Gachagua is not to blame. According to the experienced legal mind, the impeachment of a deputy president and the president cannot be equated with that of a governor or deputy governor.
“The petition is not about the current events. Let’s argue the issue before a bench of an even number because these are serious issues that will guide this process in the future,” Muite said.
Lawyer Ndegwa Njiru argued that according to Article 165 (3) (d) of the Constitution, the High Court has the power to interrogate actions of any state organ to determine if it was done appropriately. “The court can’t stop that process but when the state organ is done with the process, the court can decide on the legality of the process and the conduct of the state organ,” Njiru countered.
The Judiciary presents the last hope of salvation from Gachagua, with several strong indications of the Senate following suit from the National Assembly in removing Gachagua as Deputy President. A hearing has since been set at the Senate for Wednesday, October 16, and Thursday, October 17 next week on the impeachment motion against Gachagua, with the case set to be heard through the plenary way as opposed to a special committee.
The Senate reached the decision to proceed the plenary way to allow all 47 Senators to hear the case against Gachagua, after the Minority Leader in the Senate, Edwin Sifuna, opposed the motion to have the matter heard by a special committee.
The Constitution requires that the motion to impeach the deputy president garners the support of at least two-thirds of senators. When it comes to voting, Senators will vote on each and every charge separately, and should at least two-thirds of all the Senators find him guilty of even one, they will uphold the impeachment from the National Assembly.
The courts is thus his last hope of Gachagua’s camp appealing an impeachment and saving him from a move that could end his political career…for good!
Inside the Kenyan Senate Chambers. /SENATE KENYA