Update: High Court has declined to stop public participation on the impeachment of Deputy President Rigathi Gachagua. Justice Lawrence Mugambi has ordered the DP to serve House Speaker Moses Wetangula and Parliament with suit papers.
The National Assembly has extended by a day the public participation hearings on the impeachment of Deputy President Rigathi Gachagua , hours after the High Court ordered that the exercise should extend to the 290 electoral units the MPs represent, and not just at the level of the 47 counties.
In a notice by National Assembly Clerk, Samuel Njoroge, the House said Kenyans will be allowed an extra day of public participation that will end on Saturday October 5, 2024.
“Further to the public participation exercise which commenced on October 2, 2024, and the collection of views across the venues and constituency and county woman representative offices on October 4, 2024, the 290 constituency officer and 47 County Woman Representative offices of all members of the National Assembly, shall remain open on Saturday October 5, 2024 from 8am to 5pm to facilitate further public participation on the Special Motion,” Mr Njoroge said.
Members of the public, Mr Njoroge said in the notice, are free to continue submitting their views on the motion in the said offices for onward transmission to the National Assembly.
The notice by Mr Njoroge came just hours after Justice Richard Mururu Mwongo, sitting at the High Court in Kirinyaga, ordered the National Assembly to conduct a second wave of public participation on Gachagua's ouster motion.
The impeachment motion was tabled on October 1, 2024 by Kibwezi West MP Mwengi Mutuse supported by 291 MPs, citing 11 grounds.
As the country participated in the first round of public participation to collect views regarding the ouster motion, Kirinyaga Woman Representative Njeri Maina moved to the court in Kerugoya and secured orders for the second wave of public participation.
Ms Maina moved to court on October 2, 2024 vide case number HCCHRPET/E014/2024 challenging the sufficiency and the effectiveness of Friday's Public Participation as was directed by the Speaker of the National Assembly, Moses Wetang'ula.
Her citation, filed by Muge Law Advocates, was against the Senate and the National Assembly, both of which bear the responsibility to — in concurrence — uphold or dismiss the ouster motion.
On October 3, 2024, the High Court issued an order compelling the National Assembly to conduct a second round of public participation at the constituency level in each constituency in the Republic of Kenya.
The Court deemed the public participation limited to the county level as directed by the Speaker of the National Assembly to be insufficient thereby ordering an expanded public participation exercise.
The orders granted in part observed that the constitutional threshold for public participation must be "reasonableness of notice", and "opportunity for public participation"; and that the principles for public participation remain manifest.
The orders held it that constitutional principle under Article 10(2) of the Constitution means that public participation applies to all aspects of governance.
"The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. The lack of a prescribed legal framework for public participation is no excuse for not conducting it; the onus is on the public entity to give effect to this constitutional principle using reasonable means," the judge observed.
Justice Mwongo added that Public participation must be real and not illusory, not a cosmetic or a public relations act and not a mere formality to be undertaken as a matter of course just to 'fulfill' a constitutional requirement.
"There is need for both quantitative and qualitative components in public participation, public participation is not an abstract notion; it must be purposive and meaningful. Public participation must be accompanied by reasonable notice and reasonable opportunity," Justice Mwongo said.
The court observed that "reasonableness" will be determined on a case-to-case basis and that 'Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made."
The judge said components of meaningful public participation include the following structures and processes (medium of engagement) of participation that are clear, clarity of the subject matter for the public to understand, opportunity for balanced influence from the public in general, commitment to the process, inclusive and effective representation and integrity and transparency of the process.
The judge further added that Public participation must reflect capacity to engage on the part of the public, including that the public must first be sensitized on the subject matter.
"In light of the foregoing it is hereby directed and ordered as follows: that the public Hearings to be held on 4th October 2024 may proceed as a first stage of public participation" and then a further similar exercise be organised closer to the citizens at least at constituency level on each constituency in Kenya," the Judge said.
He said this is to enable the constituents of Members of Parliament responsible for the impeachment process nationally to engage with and participate on hearings and/or any other suitable modes by which citizens at that level can get involved and offer their representations.
The judge said that more concise directions will be issued on October 11, 2024 when all the parties appear before court.
"To be clear, the consequence of the orders of the Honourable Court is that the ongoing impeachment process cannot proceed until a proper public participation exercise led by each Member of Parliament in their respective constituencies is undertaken," Ms Maina said immediately after she secured the orders.
She said members of Parliament must understand that the impeachment of an elected Deputy President is a serious matter and the ultimate say must come from the people who elected him.
