“In my view, despite stiff opposition by the respondents, it is my considered opinion that this petition risks weighty constitutional questions that fall under Article 163 B and D (2) hence I am pursuant to refer it to the Chief Justice for empanelment of a bench, Justice Mugambi ruled.
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.
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.
Gachagua’s fate is set to be decided on Wednesday, October 16, and Thursday, October 17, when he faces the Senate. However, another lifeline was handed for the DP’s frantic last-minute application from his legal team filed under a certificate of urgency to prevent Parliament’s trial chamber from considering the ouster motion.
The High Court will on Tuesday, October 15 rule on the matter, which is Gachagua’s 24th attempt (either directly or indirectly) to block his removal from office.
Inside the Kenyan Senate Chambers. /SENATE KENYA