Condemned unfairly? High Court upholds Gachagua's impeachment, awards him Sh50m

Court awards Gachagua Sh50 million compensation for the violation of his rights by the Senate, declines reinstatement.

Lawyers fidgeted, turned in glances at each other in shock, just as everyone in the room did when High Court judges Eric Ogola, Freda Mugambi and Anthony Mrima revealed they were to read 350 pages of their final verdict to settle former Deputy President Rigathi Gachagua’s impeachment cases.

They ruled that the Senate violated his rights by failing to adjourn when they were informed by his lawyers that he had been taken ill. They awarded him Sh50 million.

With each of the approximately 10 hours clocking out, from 11 am, as the judges read the submissions in a steady but slow and gruelling pace, some lawyers turned to their mobile phones, while others blankly followed the judges as they took turns, exchanging from Justice Ogola, Mrima, then Mugambi.

 The judges first identified jurisdiction as the first issue. Justice Ogola said that Parliament could not flag immunity to evade constitutional scrutiny. He was, however, of the view that they would not merit reviewing the decision to impeach Gachagua; instead, look at the process.

“Separation of power does not mean separation from the constitution. We are therefore satisfied that this court is being called to scrutinise the legality of the impeachment process,” he said.

The judge further said that, unlike the United States of America, where the two houses of Parliament enjoy absolute protection, the Kenyan Constitution does not give Parliament unfettered powers to kick out anyone without the court’s intervention. The judge added that the court’s role is to examine whether a person’s rights were violated and the Constitution was breached, without interfering with the House's legislative powers.

“The court is not a political arbiter but a constitutional one…We find that the impeachment proceedings are justiciable, and this court possesses the power to determine whether the National Assembly and Senate acted within the constitutional bounds,” he added.

On the second issue, the Judge was of the view that the public support of the impeachment by the Members of Parliament and the speakers did not mean they had a pre-determined outcome in mind. The presiding judge asserted that although justice must be seen to be done, the speakers do not hold any vote in the house, while legislators are not expected to clothe themselves with blinds.

“Decision makers may legitimately hold predispositions, inclinations, or preliminary views on matters before them. That is the inevitable consequence of experience and engagement in public affairs. What the law prohibits is predetermination, which is a state of mind so closed to persuasion that no amount of evidence or argument is capable of altering the outcome.”

“In light of the authorities that we have cited, we hold the view that the mere fact that members of parliament, or senators, publicly supported, or opposed the impeachment of his Excellency Gachagua, cannot, standing alone, establish constitutional bias, to hold otherwise, would render impeachment, proceedings practically unworkable, and would be inconsistent with inherently political character, that the Constitution itself recognizes in such proceedings. Legislators are not expected to approach impeachment as blank slates, devoid of political opinion, or prior knowledge,” said Ogola.

According to the Judge, what the constitution requires is that they remain genuinely open to considering the evidence, listening to argument, and performing their constitutional responsibilities in good faith, and within constitutional limits.

“We are, accordingly, not persuaded by the proposition that bars may automatically infer from the fact that legislators belong to particular political parties. support particular political positions, or publicly express their views on political matters,” he said.

Justice Mugambi discussed the bench’s decision on public participation. She said that public participation is mandatory, active, adding that it cannot be cosmetic or superficial, where the public is notified of a decision already made.

The Judge asserted that public participation has to be tethered to the will and the interests of the people. However, they were of the view that the allegations must be weighed on the peculiar circumstances of each case presented, even without the legal framework.

According to her, there were approximately 223,000 persons who participated in the National Assembly’s exercise. She said that the numbers could not, however, be determined in a void; instead, they ought to be weighed against the window provided. The judge ruled that this was a considerable engagement, adding that what the public chooses to do with the grace period is about individuals’ decisions to participate or not and not the facilitator. Low turnout was not constitutionally inadequate, she said.

“Viewed against these standards, a participation figure of 223,000 citizens, achieved within the constraint timeline, represents a considerable level of civic engagement in a single parliamentary process. We say so, further considering the relationship between the state's obligation to facilitate public participation and the public's exercise of the right to participate. We take the position that a process that was accessible to all, but availed by a few, is not, by reason of low turnout alone, constitutionally deficient, provided that the low turnout was not the product of inadequate notice, in accessible venues, suppression of participation, or any other failure on the facilitating organ,” she said.

In addition, the judge noted that although the fact that Gachagua’s response to the charges was not available to the public during the window does not, without more, render the exercise deficient.

“The purpose of public participation in the impeachment process is substantively and functionally distinct from the adversarial hearing to which the respondent is entitled. The public was called upon to express its views on whether the allegations assessed on their face were of sufficient gravity to warrant the removal of a constitutional officeholder. It was not, it was never intended to be, a mini trial of the charges,” she concluded.

The judge further observed that if there were errors in collating the reports, they were minimal and could not be used to impeach the entire process.

On the Senate conducting its own public participation, the judge said that the upper house’s process was different from the lower house. She said that at the Senate’s stage, the process is adjudicative; hence, it was not required to carry out its own independent public participation.

Regarding Prof Kithure Kindiki’s nomination and subsequent vote, the court said the law is silent on public participation. The judge also said that when the National Assembly votes on a nominee, it is not acting as a conduit for public opinion but exercising delegated powers. She noted that Kenyans chose to vest their powers in Members of Parliament rather than go to the ballot mid-term.

She also said that not all functions of Parliament are required to go through public participation, adding that it would not add any value to the vote and that it was done in a transparent manner.

“The debate was televised; the proceedings were recorded in Hansard. The press was free to report, and members of Parliament were directly accountable to the Constituents for the manner in which they exercise their power. From the foregoing reasons, we hold that public participation was not constitutionally required for the nomination and approval of His Excellency Kindiki as deputy president, under article 149,” she continued.

On the seven days provided in Parliament’s standing orders to conclude the process, the court said that since the August House is well funded, it can meet the deadlines and involve the people. The court declined to strike out the National Assembly’s order 64 (2), saying that the issue was not how Parliament used the seven days, and it was free to extend the grace period if it wanted to.

The bench instead recommended reconsidering whether the seven days are enough.

Justice Mugambi, on the other hand, said that the Senate failed to modify Article 145 of the Constitution on the removal of the President to fit in with the removal of the deputy. She was of the view that the upper house just copied and pasted the requirements without making adjustments since the Deputy President does not enjoy immunity.

They were of the view that they needed to enact a statutory framework for the DP removal, but pointed out that it did not invalidate the process.

She added that the 10 days for the plenary to hear and settle the case by the Senate was self-imposed, as it was provided for the special committee. However, the judge observed that Gachagua did not prove that this prejudiced him.

The court also said that the law does not require the involvement of the Independent Electoral and Boundaries Commission (IEBC) in the nomination and appointment of a DP whenever a vacancy falls. Justice Mrima said that the secretariat was just conducting an administrative mandate by giving mere information, but it was not important.

“No clearance was required for the Deputy President. The absence of any IEBC involvement would not have rendered the nomination or the filling of the vacancy unconstitutional. The informational input by the IEBC Secretariat was entirely voluntary in character. It was not a conditional precedent to the validity of the process, and its presence, or absence, was potentially irrelevant to the outcome. That being so, the fact that the input was provided by the secretariat, in the absence of commissioners, is equally irrelevant,” said Mrima.

The court also found there was no requirement for Kindiki to resign as a Cabinet Secretary for him to qualify for the DP’s position. Mrima said that, however, Kindiki had formally resigned the same night he was nominated.

“The evidence before this court establishes that, despite the unique circumstances of his nomination, his excellence Kithure Kindiki formally resigned from the cabinet, and gazetted his exit before taking office as deputy president. By severing his ties to the cabinet, before assuming the deputy presidential office, the potential conflict of interest under article 137, sub article 2B, is designed to address was lawfully cured. The core integrity parameters of Chapter 6 and Article 137 of the Constitution were accordingly satisfied. This ground of challenge, therefore, fails,” he added.

On the speed at which he was nominated, cleared and appointed, the court said that it was within the law since the law abhors a vacuum in the Executive.

The Judges also weighed in on the impeachment process before the Senate. Justice Mrima said the upper house had the power to choose between the plenary and the special committee way, but upon hearing and considering the charges. He said that from the Hansard, there is no evidence to show that Senators debated on the same or the validity of the charges before deciding whether to subject the charges to a special committee or have the same settled by the plenary.

The judge added that the upper house is not a conveyor belt of issues emanating from the lower house. He further noted that the word may is anchored on the consideration of the Senate to interrogate the charges or not.

Justice Mrima said that the court could not approve the position taken by the upper house.

“The record shows that once the motion was laid before the house, the charges were read out, and the supporting evidence standard, that was all, no resolution admitting the motion to a full hearing was made. The Senate, instead, proceeded directly to address itself to the issue of the charges. In our view, we will not have approved this,” he said.

­Justice Mugambi then dealt with the issue of whether Gachagua was given a fair trial before the Senate after falling ill.

 She noted that there was no controversy about the National Assembly presenting its case and its witnesses being cross-examined. However, she said that the issue was that he was not given a chance to submit his side of the story after the National Assembly gave its side.

The Judge was of the view that the Senate could not abandon its decision to hear the two parties in person, when opt to consider Gachagua’s written submissions without telling his side of the story.

 The court noted that none of the Senators disputed that Gachagua had fallen ill. Instead, she said, the Senate, despite having an opportunity to adjourn, opted to proceed without hearing him. It was a negation.

However, she said, Karen Hospital CEO and cardiologist Dr Daniel Gikonyo’s health documents on Gachagua’s illness did not hold water as they were presented two years after he was impeached.

The trio ruled out reinstating Gachagua, saying the Constitution contemplated finality of the Senate’s vote to impeach. They, however, observed there was a dilemma on what to do whenever courts find there was a violation of the Constitution in the process.

In reaction to the judgment, his lawyer, Paul Muite, informed the court that he would appeal. A similar argument was raised by lawyer Ndegwa Njiru, who claimed the constitution was being buried. Lawyer Dan Maanzo said that the judgment was a new twist, an absurdity where the court has no remedy for a violation of the Constitution.

On the other hand, Prof Tom Ojienda said they would ‘wait for them in the appeal’.