The legal landmines in Gachagua's impeachment

The impeachment of Deputy President Rigathi Gachagua and nomination of Interior Cabinet Secretary Prof Kithure Kindiki to take up his place has set in motion what portends to be a protracted legal battle in court and in the political arena.

The development has set the stage for a showdown between the duo that is now claiming the number two position, with the repercussions of Parliament’s decision to shift political power from Mt Kenya West region to the East already being felt in the Presidency.

At least 108 staff members in the Deputy President’s office have been sent on compulsory leave, effective immediately, with fears abounding that they are sacrificial lambs in the bid by the state to accommodate Deputy President-elect Kindiki ahead of his swearing-in next week.

And in the courts, an epic battle is looming after Gachagua obtained court orders suspending his impeachment and effectively scuttled Kindiki’s swearing-in ceremony that had been slated to take place yesterday.

Justice Chacha Mwita issued the orders on Friday, through which he also halted the appointment of Gachagua’s successor, until October 24. This signalled that Gachagua’s ouster could be kicked further down the road.

Mwita certified the application filed by his Advocate Senior Counsel Paul Muite as urgent and remitted the file to Chief Justice Martha Koome to appoint a bench that will hear and determine the weighty constitutional issues raised by Gachagua.

“In the meantime, a conservatory order is issued suspending the Senate’s resolution to uphold the impeachment charges against the Deputy President,” Justice Mwita ordered.

Constitutional expert Bobby Mkangi suggests that, due to the parties involved, the process is likely to be protracted, as the way courts handle this historic case will set a precedent for similar matters in the future.

“From the parties involved, they may want to stretch this matter to make sure that they exhaust all avenues available to them and all indications are that the case will go all the way to the Supreme Court,” said Mkangi. He, however, does not rule out the possibility of the matter being expedited given its nature.

“…the conservatory orders may be set aside to allow for other modalities such as the swearing-in to take place but if that happens questions will be raised. It will be interesting to see how the matter will be handled because its outcome will dictate how such cases will be handled in future,” added the lawyer.

Governance expert Prof Macharia Munene warned of more political battlefronts emerging between President   Ruto and Gachagua regardless of the outcome of the process. He argued that Kindiki, who is Ruto’s preferred deputy, would be drawn into a tussle for political clout with Gachagua who believes he has the backing of the populous Mt Kenya West region.

He views the sending of staff in the office of the DP on compulsory leave as the first step to a drawn-out battle between the two tiers of presidency ahead of the court’s pronouncement on the matter.

“The impeachment process is political with a legal angle. Even if the court says that Gachagua is safe, he will not have any workers in office…,” he stated.

Munene further chimed in on the seemingly accelerated plans by the State to swear in Kindiki as Ruto’s number two, noting that it was unlikely that the swearing-in ceremony would take place next week Tuesday.

“The court might take some time before determining Gachagua’s impeachment case and it would therefore, be premature to plan a swearing-in ceremony…the case will take a few days to allow for the parties to be heard and maybe a few more for the case to be determined. Depending on the outcome, the parties may also want to appeal the decision,” he added.

Notably, the law provides that the Deputy President-elect shall take and subscribe to the oath or affirmation of allegiance and oath or affirmation for the execution of the functions of office in accordance with Article 148 of the Constitution.

Article 148(4) provides that the swearing-in of the Deputy President-elect shall be before the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice and in public.

This means that for the ceremony to take place, the matter should be concluded and determined and a pronouncement issued by the courts.

Meanwhile, concerns have emerged regarding Kindiki’s qualifications for the substantive second-in-command position.

Kenyans on social media platforms yesterday argued that, according to Article 137 of the Constitution, Kindiki was ineligible to hold the office of the DP because he had not resigned from his role as Interior Cabinet Secretary at the time of his nomination.

Meanwhile, concerns have emerged regarding Deputy President-elect Kindiki’s qualifications for the substantive second-in-command position.

Kenyans on social media platforms like ‘X’ argued that, according to Article 137 of the Constitution, Kindiki was ineligible to hold the office of Deputy President because he had not resigned from his role as Interior and National Administration Cabinet Secretary at the time of his nomination by the president.

Article 137 (2) (b) states that a person is not qualified for nomination as a presidential candidate if the person is a public officer, or is acting in any State or other public office.

“Prof Kithure Kindiki is not eligible for nomination as the Deputy President as per Article 137 of the Constitution. Parliamentary action is nugatory,” posted Laban Mbunya on X.

But during the voting on the nomination of Kindiki as Deputy President in Parliament, Speaker Moses Wetangula ruled that he (Kindiki) had met all the requirements under Articles 148 and 137 of the law.

“In the view of the foregoing honourable members, and having perused the attached documents, I am satisfied that the candidate meets the requirements under Article 148 as read together with Article 137 of the Constitution to fill the vacancy in the Office of the Deputy President,” Wetangula stated.

All eyes are now on Koome who is expected to clarify on the dilemma surrounding Kindiki’s assumption of office as the Deputy President.