The High Court is set to deliver a ruling on Tuesday October 15 at 2:30 PM on whether to suspend the impeachment trial of Deputy President Rigathi Gachagua in the Senate.
This decision will come a day before the Senate is scheduled to begin the hearing of the impeachment motion.
Justice Chacha Mwita set the ruling date after listening to detailed arguments from Gachagua’s legal team, the National Assembly, and the Senate during a four-and-a-half-hour session on Monday.
The ruling could either halt or allow the impeachment process to proceed.
But the senate speaker Amason Kingi argued the impeachment motion is their constitutional mandate and they will go on with it even if a court rules otherwise.
Senior Counsel Paul Muite and Tom Macharia had argued that the impeachment process in the National Assembly was unconstitutional, saying there was lack of proper public participation and inadequate time for proper proceedings.
“The impeachment of a Deputy President is constitutionally a two-stage process,” Muite told the court.
“The first stage is conducted by the National Assembly, and once it fulfills its constitutional mandate, the matter is referred to the Senate. However, we are submitting that the National Assembly violated the Constitution, particularly Article 118, which mandates public participation in legislative processes such as this impeachment.”
Gachagua argued that the National Assembly’s decision to limit public participation to only 12 days violated the right to a fair trial.
According to Gachagua “the National Assembly did not have the constitutional authority to limit public participation to such a short period.”
He said the notice issued by the National Assembly on October 4, after the high court in Kerugoya directed the public participation to take place at the constituency level the following day was on short notice.
“Where was the time for Kenyans to be made aware that there would be public participation the next day?” he asked.
Gachagua through Muite questioned, stating that only 224,907 citizens out of a population of over 20 million had participated in the process.
“This is a mockery of the constitutional requirement for public participation,” Muite argued, citing Article 118, which mandates that Parliament must facilitate “reasonable and meaningful public participation.”
Muite further raised inconsistencies in the public participation process where he pointed to cases such as Keiyo constituency, where only 43 people reportedly attended, yet 70 votes were recorded in support of the impeachment.
“Such contradictions cast serious doubt on the legitimacy of the process,” Muite stated.
Muite told Justice Mwita that the Deputy President was denied the opportunity to respond to the allegations, a key element in ensuring a fair trial.
“Only the allegations were presented to the people; no answers from the Deputy President were provided for public consideration. This undermines the entire process,” Muite submitted.
In an online opinion poll cited by Gachagua, only 7 percent of participants supported the impeachment, while 93 percent opposed it. Despite this, the National Assembly passed the impeachment motion late at night on October 9, and swiftly transmitted it to the Senate for the next stage of the process.
Gachagua wants the court to issue a stay of the impeachment proceedings in the Senate.
“We ask this court to stand up for constitutionalism and the rule of law,” they said.
“The speed with which this matter is being pushed through raises serious concerns. By October 17, if the Senate completes the impeachment, the Deputy President could already be removed from office, rendering this petition moot.”
“The Constitution is what holds our nation together, and it is the duty of this court to preserve it,” Gachagua’s legal team argued.
The National Assembly and the Senate, on their part, asked the court to dismiss the petition, arguing that it constitutes “a crude form of forum shopping.”
They contended that Gachagua had knowingly filed “four separate petitions seeking the same relief, hoping for different outcomes.” This, they argued, was improper and an abuse of the court process.
They told the court that “the only prayer actively argued by the petitioner is prayer 5 in the notice of motion.” However, they pointed out that this prayer “is identical to prayer 6 in the notice of motion dated October 2 in Petition 522.”
The issue concerning Standing Order No. 64 and the constitutionality of public participation had already been raised in Petition 522. They further noted that “the notice of motion dated October 11 at prayer 6, which seeks the empanelment of a bench, mirrors prayer 7 in Petition 522,” which has already been argued and determined by Justice Lawrence Mugambi.
They told the court that in the petition before Justice Mugambi, Gachagua had informed the court that they were no longer pursuing conservatory orders as the impeachment proceedings in the National Assembly had been concluded. Instead, they “sought certification of a constitutional issue.” Justice Mugambi’s ruling addressed “only the matter of certification.”
Given this history, they argued that “if there is any benefit to be gained from these proceedings, it would be more appropriate for the petitioner to seek consolidation of this case with Petition 522”.
“The impeachment proceedings in both the National Assembly and the Senate are political processes involving distinct arms of Parliament.
“There is no final decision yet from these bodies that would warrant the issuance of conservatory orders at this stage,” they argued.
On the issue of public participation, they argued that it was “sufficiently conducted in accordance with constitutional requirements”.
While public participation is a core constitutional value, they contended, “the judicial function must be exercised with caution.”
They further said that public participation does not require “every citizen to take part,” but only ensures that the opportunity to participate is provided.
“In this case 224,907 individuals voluntarily participated and no one has come forward to claim they were denied an opportunity to participate,” they argued.
According to them, the only votes that matter in the impeachment process are “those cast by the respective Members of Parliament.”
They vehemently opposed the notion that opinion polls should influence this process, saying that such polls “have no constitutional basis in this context.”
They urged the court to dismiss the petition with costs as it raised issues that had already been addressed in prior proceedings.
They maintained that “the impeachment process is not a criminal trial but a matter of political responsibility,” and the Deputy President “should not avoid undergoing this constitutional process”.
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