BY SAM ALFAN.
Deputy President Rigathi Gachagua has suffered major setback after the High Court declined to stop the Senate from conducting his impeachment trial.
Justice Enoch Chacha Mwita rejected the application by Gachagua seeking to block the Senate from debating the resolution of National Assembly voting to impeach him.
Justice Mwita rules Parliament should be allowed to exhaust its authority.
“In conclusion, having considered the application and arguments by parties, the constitution and precedent, the prayer for grant of conservatory orders is declined,” ruled Judge Chacha.
However, in view of the issues raised in this petition which also appear to relate to those in petition, No E522 of 2024, which has been certified for purposes of appointing a bench of uneven number of judges to hear it.
” I certify this petition as raising substantial questions of law and of public interest, in terms of Article 165(4) of the constitution. This file is to be placed before the . Chief justice to consider appointing an uneven number of of judges to hear this petition,” ruled Judge Mwita.
On Friday, Gachagua approached the court seeking to stop senate from proceedings with impeachment motion.
Gachagua has pleaded with the court to stop the process alluding that he was being witch-hunted.
High Court Judge Chacha Mwita certified the matter urgent and ordered the petition to be heard on Monday.
National Assembly voted overwhelmingly for the ouster of Gachagua and forwarded the resolution to the Senate to conduct the trial against the 11 accusations against the DP.
He moved to court seeking to restrain the Senate as a whole from admitting, processing, debating or in any other manner from considering the Motion for his removal.
“This court has jurisdiction under Article 23 of the Constitution of Kenya, 2010, to consider and issue remedies in the nature of conservatory orders in appropriate and deserving cases,” says Gachagua
The motion dated 26th September 2024 was tabled in the National Assembly of Kenya on 1st October 2024, proposing the removal of the office of the Deputy President.
The National Assembly resolved to allow the motion on 8th October 2024 at approximately 9 pm. On that very night, the Clerk of the National assembly sent the Clerk of the Senate communication titled Resolution of the National Assembly on a special motion on the removal from office by impeachment of the Deputy President Rigathi Gachagua.
The said resolution transmitted to the Clerk of the Senate by the Clerk of the National Assembly is invalid on the grounds that the impeachment motion is replete with general unsupported allegations, hearsay and outright lies and lacks the particularization and specificity required by Article 145(1) of the Constitution of Kenya and Standing Order 64(1A) of the Standing Orders of the National Assembly.
The National Assembly did not conduct a constitutionally compliant public participation exercise prior to passing the impeachment motion on 8th October 2024. The impeachment motion does not meet the threshold test set by Article 145(1) and Wambora Appeal 1.
The appropriate standard of proof was neither considered nor met when the National Assembly passed the impeachment resolution.
Members of parliament debated and voted on the motion on grounds other than those set out in the motion. The impeachment was converted into a vicarious assault on family rather than investigation of constitutional violations by a public servant. Members of parliament were subjected to intimidation and undue influence prior to and during the hearing of the motion.
The entire impeachment process has been designed to avoid and be ring-fenced from judicial scrutiny and accountability. The process has been attended by uncharacteristic speed with the intention of ramming the process through before it can be audited for constitutional compliance.
The National Assembly prosecuted proceedings on the basis that Gachagua offended the President rather than the Constitution and the law. The object of the impeachment exercise appears to have been to please the President rather than examine fidelity to the Constitution of Kenya.
