“The impeachment process that is ongoing regarding our Deputy President is not unique; it is an application of the constitution. It is not something that has been plugged from the air; it has a constitutional process to follow. And therefore, to that extent, it is a constitutional process.
“If it comes to court after Senate whatever it is that happens, we don’t know; we cannot anticipate the outcome of the Senate process. If it comes here, it is a case like the next case,” Mwilu remarked.
She further affirmed that if the process heads to court after the Senate’s verdict, the judiciary will not go outside the law in dealing with it, an assurance to Kenyans who feared that the Judiciary would be compromised in the event it decides to handle the case.
“It will be handled by we who sit it in the Judiciary in the manner the constitution has authorised to do, in the manner the law has authorised to do. We cannot go outside the Constitution; we cannot go outside the law,” Mwilu stated.
Gachagua has not had it easy with the courts so far. A three-judge bench appointed by Chief Justice Martha Koome to hear and determine petitions filed by the second in command dismissed a last-minute petition to halt his impeachment before the Senate.
The three-judge bench presided by Judges Eric Ogola, Fridah Mugambi and Anthony Mrima ruled that the Constitution outlined separation of powers thus barring the High Court from stopping the Senate’s proceedings.
The court had ruled that DP Gachagua’s petition to stop his impeachment raised constitutional issues that required further judicial interrogation. According to the High Court judges, the Senate’s proceedings to impeach the second in command were lawful and the Senate plenary would equally determine all the issues raised by the petitioner in his suit.
This ruling meant that the Senate was allowed to hear and determine Gachagua’s impeachment, more than a week after 281 Members of Parliament voted to oust him.
Gachagua was offered a chance to appeal his dismissal by the Senate plenary at the Court of Appeal, should the Senators decide to uphold his impeachment.
“On the issue that has been raised that as soon as the Senate impeaches the DP, if at all that happens, that the DP immediately ceases holding office and that it cannot be reclaimed, we take the view that every office holder can only assume office legally and constitutionally,” the court stated.
On Tuesday, October 15, the High Court refused to issue conservatory orders barring the Senate from moving ahead with debating the impeachment of the second in command.
Today, Gachagua is set to defend himself by presenting evidence, and affidavits from 2.30 pm in a 3-hour cross-examination process. After that, the Senate will determine his fate; whether his impeachment by the National Assembly will stand or will be thrown out.
Inside the Kenyan Senate chambers. /PARLIAMENT KENYA