What next for Gachagua after verdict?

The judgment by the High Court to uphold former Deputy President Rigathi Gachagua has further compounded divisions among the legal scholars on whether he may run for Presidency in next year’s polls.

The Eric Ogola-led bench finding that Gachagua right for fait trial was not granted in The Senate is at the center of debate with a section of legal minds maintaining that the finding gives Gachagua a limelight to pursue his political ambitions which includes occupying a public office such as being a Cabinet Secretary or even being a party leader of a political outfit.

The Supreme Court pronounced itself on the matter in former Nairobi Governor Mike Sonko’s impeachment case when it ruled that he could not vie for any office.

Speaking on Spice FM later, Chief Justice Martha Koome also cautioned that even the appeal can’t take away the impeachment until a competent court makes a ruling on the same.

On July 15, 2022, the Supreme court cut short Sonko’s ambitions to run for Mombasa Governorship after finding that his impeachment met all legal thresholds and public participation requirements thereby permanently barring him from holding or running for any state office in Kenya under Chapter Six of the Constitution.

In a joint verdict, the seven-judge bench ruled that the impeachment proceedings against Sonko before the County Assembly and the Senate were properly conducted in accordance with Article 181 of the Constitution, Section 33 of the County Governments Act and Standing Orders of the Assembly and the Senate.

Persons impeached from office are deemed to have contravened Article 75(3) of the Constitution which stipulates that: “A person who is removed from office on contravention of Chapter 6 of the Constitution is disqualified from holding any other State or public office whether elective or appointive.”

"Chapter Six of the Constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a State officer is a public trust to be exercised in a manner that demonstrates respect for the people; brings honour to the nation and dignity to the office; and promotes public confidence in the integrity of the office. It vests in the State officer the responsibility to serve the people, rather than the power to rule them," ruled the Supreme Court.

Further Koome’s remarks while appearing on a Spice fm morning show, reiterated that once impeached, a governor remained so until the sentence was set aside.

“If you are impeached you are impeached until that impeachment is lifted, until the court relieves the impeachment and so is the sentence if you have been sentenced you are actually sentenced until the sentence is set aside, the appeal does not take away the sentence,” she said.

A section of lawyers led by Homa Bay Town MP Peter Kaluma has maintained that Gachagua can’t hold any public office while others such as Bernard Karanja opined that legal timelines ahead of Gachagua’s case would technically knock him out in the next year’s polls.

“The easier option was just setting Gachagua free. By upholding the impeachment, the high court has caged Gachagua and confined him to only one thing, being a kingmaker. A caged Gachagua is more dangerous than a roaming one. It now doesn’t matter whether United opposition wins or Ruto gets a second term. A Rigathi Gachagua handshake will always be inevitable for any president,” Karanja said.

However, Law Society of Kenya President Charles Kanjama said Gachagua remained eligible to contest for public office despite the High Court upholding his impeachment, saying the appeals process must be exhausted.

He cited Articles 73, 75 and 99 of the Constitution, particularly Article 99(3), which provides that a person removed from office for violating Chapter Six of the Constitution is disqualified from holding elective office only after all avenues of appeal have been concluded.

 “A plain reading of Article 99(3) shows that his right to vie for public office is still open, and is still alive until such a time as the Supreme Court will give its final determination. The High Court left open the question of whether all the fruits of impeachment will still apply after upholding the finality of impeachment,” he said.

Kanjama however said the court did not clearly address the consequences of the impeachment citing that the ouster process had two fruits which included losing the office and the dignity and the other being ineligible to run for public office.

“The other fruit is a consequent one that once your process of challenging the impeachment is over, you're not allowed to stand for office again. It is political death in Kenya under the constitution. So the court did not pronounce itself on this second issue. We have been left as legal analysts to now do our analysis while the court is silent,” he said. 

Former LSK President Eric Theuri who described the Monday judgment as ‘a political decision at best as it is legally absurd’ said the constitution expressly provided that any decision in violation of rights void.

“The effect of impeachment is that the person cannot hold public office. So how does a decision in violation of rights for which the Court has awarded damages operate as a bar to running for office. Those are judicial gymnastics that reflect a captured court,” he noted.

On his part, Lawyer Peter Wanyama maintained that the Democracy for Citizens Party (DCP) leader was constitutionally eligible to contest the presidency despite a setback in the High Court in his impeachment case.

“The Constitution provides adequate safeguards, checks, and balances regarding the fate of the impeached Deputy President Rigathi Gachagua. His fate lies in the Supreme Court, not the High Court or the Court of Appeal,” Wanyama stated.

According to the lawyer, while Gachagua may have encountered legal hurdles at the High Court level, the Constitution protects his political rights until all available avenues of appeal have been exhausted.

“Although he has faced setbacks at the High Court, it is important to note that until the Supreme Court upholds the decision, Rigathi Gachagua remains eligible to vie for the presidency,” he explained. According to the Constitution, a person is not disqualified from running for election unless all avenues for appeal have been exhausted,” he added.

According to Kirinyaga Women Representative Njeri Maina, the three judge bench contradicted themselves by referring the to Sonko and former Embu Governor Martin Wambora impeachment cases to justify their judgment while in some instances saying they could not apply the impeachments where it favored Gachagua.

“They referred to precedent when it suited them but then go ahead to say that you know we can't refer to Sonko in regard to impeachment because it was in regard to the impeachment of a governor and not a deputy president or a president. So you do find the quagmire and the contradiction in their arguments,” she said.