Judiciary’s bid for neutrality in political lynching of former DP Rigathi Gachagua

Kenya’s political and legal landscape recorded a historical process in the first impeachment of a Deputy President in which former DP Rigathi Gachagua fought desperately to save himself from a politically fatal blow, in which he largely failed.

But what was also clearly historical is the Judiciary’s skilful manoeuvres to evade getting caught up in shreds of insidious political warfare that spilled into courtrooms in October 2024.

Judges and the Judiciary’s leadership appeared to have been on a mission to steer themselves from perceptions of impartiality.

It was evident that judges were keen to avoid being used as shields as political antagonists flexed their muscles right into the courtrooms.

Gachagua’s strategy, which involved filing different applications in various courts to stop the onslaught at the National Assembly and later in the Senate, made the Judiciary raise its antennas as this scheme to sustain his stay in office was a legal landmine that could taint the Judiciary’s image of an apolitical institution.

This strategy had placed the Judiciary at risk of conflict as the threat of different judges giving conflicting orders and making contradictory decisions was real.

Court orders lifted

Although it worked for the former DP, earning him two weeks post-impeachment stay in office hanging by threads of court orders, Gachagua was eventually disgracefully hauled out of office after the court orders were lifted.

But the proceedings that sometimes went on into the night were not devoid of instances that would offend the judges, but the jurists maintained their cool, under some very glaring attacks on their integrity and independence.

For instance, one of Gachagua’s lawyers, Ndengwa Njiru, wildly claimed that Justice Freida Mugambi, a member of the three-judge bench including Justices Eric Ongola and Anthony Mrima appointed to hear the consolidated petitions, was a post-graduate student of Prof Kithure Kindiki at Moi University. Kindiki was picked to replace Gachagua as DP.

According to Njiru, this “fact” intentionally “withheld”, made Mugambi unsuitable to sit on the bench, citing a conflict of interest since Kindiki, her alleged former tutor, was an interested party in all the petitions.

Although Njiru’s allegations were entirely devoid of facts as Justice Mugambi holds a master of laws (LLM) degree from the University of Birmingham in the UK, the bench did not put up an argument to prove the lawyer wrong, instead leaving him to be lynched in the digital wilderness.

On social media, Njiru was taught that Moi University’s school of law does not offer postgraduate programmes.

In one of the petitions filed before Justice Chacha Mwita, Gachagua’s legal team had sought conservatory orders to stop the Senate from impeaching the former DP after his ouster at the National Assembly.

At this time, Chief Justice Martha Koome had constituted a three-judge bench to handle all petitions filed by Gachagua and his allies in different courts seeking to stop the impeachment.

Koome had appointed Justices Eric Ogola, Freidah Mugambi and Anthony Mrima to sit in the bench to handle consolidated petitions filed in different courts to challenge the impeachment.

Mwita ordered that the file be placed before Koome to consider appointing an even number of judges to hear the petition. But Koome directed the bench she had earlier constituted to hear all the petitions.

Gachagua was arguing in courts that the impeachment was a violation of his constitutional rights of fair administrative action as provided under Article 50 (1) of the Constitution while seeking to have the exercise stopped pending the hearing of his petition to permanently stop the ouster.

“The constitutional right of the Deputy President (Gachagua) has been violated and that is why he has challenged his impeachment. The sole purpose of a conservatory order is to preserve that subject matter,” Gachagua’s lead lawyer, Senior Counsel Paul Muite stated, urging the Justice Ogola-led bench to stop the impeachment pending determination of whether the former DP was constitutionally ousted.

But Parliament’s lawyer Peter Wanyama insisted that Gachagua was accorded the opportunity to defend himself against the accusations that sired his removal from office.

Impeachment accusations

Gachagua was removed from office on accusations of corruption and money laundering in which he is accused of amassing questionable wealth of Sh5.2 billion within two years he was in office as the DP and tribalism among others.

He has, however, maintained that has been condemned unheard and the process of public participation to evaluate the suitability to serve in office did not meet the requirements set by the constitution.

Gachagua maintains that public participation that was conducted did not meet the requirements set by the Constitution in Article 118.

He will have to prove this during the hearing of petitions before a three-judge bench seeking to overturn his impeachment and to reclaim his suitability to hold a public office, failure to which he remains in political oblivion for the rest of his life.

After losing in all petitions to stop the impeachment, Gachagua proceeded to seek orders restraining his successor Kindiki from being sworn in to replace him and the same were allowed by Justice Richard Mwongo of the High Court in Kerugoya.

But Parliament and the office of the Attorney General pleaded with the three-judge bench to vacate the orders to allow Kindiki’s swearing-in.

The state had argued that the current constitutional framework does not envision any scenario in which the office of the DP would remain vacant except during the brief period required to fill a vacancy.

Politically fatal

Gachagua fought off this application by the state, stating that once Kindiki is sworn in, it would be politically fatal for him as he would not be able to regain his office even if the High Court invalidated his impeachment. The bench rejected his prayers.

"Allowing the constitutional process to unfold does not in itself result in detriment as it upholds the rule of law and respects the framework agreed upon. Should any of these petitions succeed, this court will have no shortage of effective remedies to address this situation," the judges said in a unanimous ruling.

“The applications for conservatory orders are hereby disallowed. The conservatory orders on October 18, 2024, in Kerugoya High Court are hereby discharged and set aside,” Justice Eric Ogola ruled on October 31.

Gachagua immediately moved to the Court of Appeal which declined to suspend the ruling of the three judges and Kindiki was sworn in the next day, leaving Gachagua with no option but to surrender.