High Court declines to stop Gachagua's impeachment plan

The planned impeachment motion against Deputy President Rigathi Gachagua will proceed after the High Court declined to issue orders blocking its tabling in Parliament.

The ruling came in the wake of multiple petitions filed by former UDA Secretary General Cleophas Malala, Caroline Wambui and Sheria Mtaani, a lobby group.

The petitions aimed at halting Gachagua’s impeachment focus on claims of  violation of the Constitution with the petitioners arguing that the process lacked necessary public participation.

The petitioners also contend that the National Assembly and the Senate had failed to meet the constitutional requirement of a two-thirds gender representation, further undermining the legitimacy of the House and the planned impeachment motion.

In the case filed by Malala and Sheria Mtaani, judges Chacha Mwita and Bahati Mwamuye of the Milimani Constitutional and Human Rights Division in their separate rulings rejected their request to prevent MPs and Senators from tabling or debating the motion on Tuesday.

Instead, Justice Mwamuye certified the cases as urgent, directing the petitioners to serve the National Assembly and the Senate alongside respective Speakers Moses Wetang’ula and Amason Kingi accompanied with the necessary pleadings by the close of business yesterday.

“The chamber summons dated September 30, 2024, be and is hereby certified urgent and it shall be heard on a priority basis,” Justice Mwamuye ruled on Malala’s petition.

The judge emphasised that the case would be prioritised, allowing for responses from the National Assembly and Senate by October 3, 2024, with a mention scheduled for October 7.

In his petition, Malala argues that the current composition of the National Assembly and the Senate is unlawful and lacks the constitutional mandate to engage in an impeachment process.

He says both Houses have failed to meet the constitutional requirement of two-thirds gender representation, as stipulated in Articles 27(8) and 81(b) of the Constitution.

“The National Assembly and the Senate have failed to meet the constitutional threshold of the two-thirds gender principle, rendering their composition unconstitutional,” Malala, through his lawyer Mwenda Njagi, states.

He adds that this failure not only undermines the legitimacy of Parliament but also violates the constitutional rights of Kenyan women to equality and freedom from discrimination.

“This ongoing violation delegitimises any actions taken by Parliament, including motions for impeachment,” notes lawyer Njagi. 

Malala argues that allowing an improperly constituted Parliament to deliberate on the impeachment motion would set a dangerous precedent, jeopardizing the rule of law in Kenya.

He references previous court rulings and Supreme Court advisory opinions that have deemed inaction on the two-thirds gender rule unconstitutional, including the Supreme Court Advisory Opinion on December 11, 2012.

“An unconstitutionally constituted body cannot lawfully discharge its constitutional duties,” says Njagi while reiterating that any decisions made by the current Parliament regarding impeachment are inherently flawed and invalid.

Malala’s lawyer warns that proceeding with the impeachment in its current form would violate the Deputy President’s rights and compromise individual’s right to fair administrative action, given that the process would be irregular and unlawful.

“If allowed to proceed, the Deputy President faces irreparable harm, including permanent disqualification from future public office,” Njagi argues, insisting the impeachment process must be conducted legally and fairly.

Njagi expresses fear that should the impeachment succeed, it would cause his client irreparable harm, including permanent disqualification from holding public office in Kenya.

Malala maintains that the failure to comply with the gender rule signifies that Parliament lacks the necessary quorum to lawfully hear the impeachment proceedings, rendering any decisions made by such a body null and void.

In addition to Malala’s petition, five other Kenyans Obuli Namenya, Kennedy Gachege, Denis Okumu, Simon Muchangi, Peter Kanene, and Caroline Maina have filed separate petitions seeking to halt the planned impeachment.

Their lawyer, Ndegwa Njiru, expresses concern regarding the potential for the impeachment to proceed without mandatory public participation.

Specifically, they contend the National Assembly’s Standing Orders 64, 65 and 74, have not undergone the necessary public scrutiny or engagement.  

The petitioners say the Standing Orders fail to outline critical elements of the impeachment process, such as the mechanisms for public participation, the procedures involved, the thresholds required, and the specific categories of participants.