The cases challenging the removal of Rigathi Gachagua as deputy president have put the Constitution to the test as lawyers representing various parties made their submissions in court and judges ruled on several applications.
While some of the issues will be decided after a full hearing, including the right to a fair hearing and the question of public participation, the High Court was asked to rule on whether the Deputy Chief Justice can appoint judges and how long the position of deputy president can remain vacant.
Mr Gachagua's first application challenged the powers of Deputy Chief Justice Philomena Mwilu to assign judges to the High Court in the absence of Chief Justice Martha Koome.
In their ruling, Justices Eric Ogola, Anthony Mrima and Dr Freda Mugambi said Article 20(4) required the courts, in interpreting the Bill of Rights, to promote the values underlying an open and democratic society based on human dignity, equality, justice and freedom and the spirit, purport and objects of the Bill of Rights.
They also pointed out that Article 259(1) requires courts to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, allows for the development of the law and contributes to good governance.
The three judges said they had no difficulty in upholding the position that a constitutional mandate of the Chief Justice can be judicial, administrative or political.
They added that the constitutional mandate exercised by the Chief Justice under Article 165(4) of the Constitution is a constitutional administrative function.
“We find that there was a deliberate scheme by the drafters of the Constitution for the Hon. DCJ to deputise the Hon. Chief Justice as Deputy Head of the Judiciary and as the Vice-President of the Supreme Court, but not in the Commission,” the court said.
They added that the DCJ can assign judges under Article 165(4) of the Constitution whenever he or she is discharging any of the constitutional functions on behalf of the Chief Justice.
“In this case, we do not find any fault in the Hon. DCJ assigning judges to sit on this bench, more so when the Hon. Chief Justice has not raised any red flag,” said the judges.
Another issue that came under scrutiny was the vacancy of the deputy president and for how long the position can remain vacant.
Lawyer Adrian Kamotho said the three judges had resolved the impending legal quagmire by ruling that the Constitution does not envisage the vacancy of the post of the deputy president.
“In finding and holding that the position ought to be filled as soon as the vacancy arises, the judges stated that the office does not belong to an individual but that it belongs to all Kenyans,” he said.
In the ruling, the bench said the constitutional framework does not envision a scenario in which the office of the deputy president would remain vacant except during the short period required to fill a vacancy.
“As such, the public interest demands that the office of the deputy president should not remain vacant,” said the judges.
Mr Kamotho said the court also asserted its power to grant remedies after the cases and that Kenyans should not shy from going to court whenever their rights are violated because the judges said the courts are not short of remedies to grant.
For his part, lawyer Benson Millimo said the cases have proved that Kenya is governed by a democratic constitution and that all the three arms of the government can work independently.
The lawyer said it was now clear that Parliament could independently exercise its oversight mandate and impeach a member of the executive, and that the courts were called upon to review the process and grant appropriate relief.
“The fact that all arms of the government can work independently goes to show how mature we have become as a country,” he said.
“If we go on this way, there is no reason for going to the streets but one can move to court and argue their case. It is no longer about an individual but all of us,” he said.
Other issues to be decided by the judges include the strict timelines within which the impeachment process must be completed and the right to a fair trial, which cannot be limited or denied.
The judges will also determine the role of the Independent Electoral and Boundaries Commission (IEBC) and the Ethics and Anti-Corruption Commission (EACC) in the process of filling the post of deputy president when it becomes vacant.
Parliament was also tested by the process, the first under the 2010 Constitution. When the motion to impeach Rigathi Gachagua was tabled in the National Assembly in early October, MPs were unsure how to proceed as there was no specific legislation to guide the process.
As the lawmakers debated, Rarieda MP Otiende Amollo explained that public participation should take place within the 10-day period. This is also required for the plenary to investigate, debate and vote.
There were plans to pass and enable legislation known as the Impeachment Bill 2018, but it never became law.
The proceedings against Mr Gachagua were conducted by the plenary of the Senate under Article 145(3)(a) and not by a special committee as provided for in Article 145(3)(b).
The Constitution does not specify a time frame within which the investigation must be completed, whether by the Senate's plenary or by a special committee. This became one of the sticking points as lawyers on both sides of the divide argued their cases.
The National Assembly invited public views to be conducted for one day but it took a court order for the MPs to extend it by an extra day and in constituencies rather than counties.
In challenging his impeachment, Mr Gachagua argued that the process was a serious matter that had to be conducted in accordance with the strict dictates and provisions of the Constitution and Parliamentary Standing Orders.
He further argued that the impeachment process can only be conducted by an independent and impartial body.
Mr Gachagua also questioned the format of the "Public Views Template" and the respondents' submissions. Further questions were raised about the verification of the true identity or even existence of the "participants", as there is no requirement for "participants" to fill in any form of identification verification documents.
The DP will seek a declaration that for the purpose of impeaching the President or Deputy President, public participation must take place in all 290 constituencies and the Diaspora, as well as in the 1,450 electoral wards where the presidential election took place.
