The removal of former Deputy President Rigathi Gachagua was motivated by predetermined malice rather than a genuine danger to society, a legal representative informed the court.
Constitutional attorney Kibe Mungai, during the final hearing regarding the former deputy president’s ouster, informed a three-judge High Court panel that the impeachment failed to meet the minimum standard expected in any democratic system.
He drew a sharp comparison with the 1999 trial of United States President Bill Clinton regarding the Monica Lewinsky matter, noting that ultimately, Americans were more concerned about potential public harm, opting against ‘hanging’ the leader over ‘personal moral failings’.
He referenced Alexander Hamilton, who in the 1790s avoided impeachment stemming from a private financial dispute because his purported actions did not threaten American society.
Mungai argued that the motion never satisfied the standard that impeachment was intended to address. ‘It was never intended to facilitate resolving any political vendettas or specific conflicts. That would constitute an abuse of the impeachment mechanism.’
‘To prevent this process from becoming an injustice, to prevent it from resembling a trial like that of Jesus Christ, the American Constitution mandates that the hearing be overseen by the Chief Justice,’ Mungai presented to Justices Eric Ogolla, Anthony Mrima and Fredah Mugambi.
Parliament, he contended, had assumed the roles of ‘prosecutor, judge, and executioner,’ turning the Senate and National Assembly into a ‘political court’ that disregarded constitutional standards in favor of resolving personal conflicts.
He further claimed that the rapid pace of proceedings eliminated any chance for a fair trial, converting the legislative bodies into ‘prosecutor, judge, and executioner.’
A primary grievance was Parliament’s intentional circumvention of the select committee pathway.
According to the Constitution and Standing Orders, when charges are brought against a deputy president, the Senate may establish a special committee of eleven members to investigate the allegations within ten days, gathering sworn testimony.
Gachagua’s legal team asserted that the Senate illegally declined to form such a committee, instead proceeding directly to a plenary vote that denied the accused any substantive investigative process.
During the proceedings, attorneys, including Wambui and Ndegwa Njiru, presented that the Senate neglected to establish a select committee of 11 members to consider the case.
Rather than utilizing the select committee approach, the chamber opted for plenary sessions, which constituted a procedural violation that infringed upon the former Deputy President’s right to a fair hearing.
Legal representatives for the petitioners argued that the Senate’s decision to skip the select committee procedure in favor of a plenary session was part of a ‘rushed and defective’ mechanism intended to produce a predetermined result.
The court was also informed that Parliament disregarded a constitutional mandate under Article 150, which obligated legislators to establish procedures for removing a deputy president.
‘Parliament did not actually modify or comply with the constitutional directive regarding its responsibilities,’ Mungai stated. ‘The Senate and the National Assembly transformed themselves into a conduit for political whims, completely ignoring the constitutional protections designed to safeguard the holder of the Deputy President office,’ Mungai informed the court.
Advocate Shadrack Wambui, supporting the petitioner’s position, described the ‘irreparable damage’ resulting from the removal, not only to Gachagua but also to the millions of Kenyans who had voted for the presidency.
Wambui contended that the removal process established a dangerous precedent where a popular mandate could be nullified by legislative ‘mob rule.’ Outlining the remedies sought, Wambui declared, ‘We are requesting this court to nullify the proceedings of both chambers completely. Our demands extend beyond Rigathi Gachagua personally; they seek the restoration of constitutional order that was violated when Parliament chose to circumvent the law.’
Legal representatives for the petitioners argued that the National Assembly did not satisfy either the qualitative or quantitative standards for public engagement. They noted that an exercise designed to gather the perspectives of a 52 million-person nation produced only a ‘minimal 200,000 responses,’ equivalent to just 0.385% of the population.
This numerical deficiency, they maintained, was a direct consequence of a process that lacked prior awareness campaigns, civic education, and adequate time for citizens to comprehend the allegations.
Presentations also emphasized the purported breach of an existing court order, which established a binding legal framework for the participation process.
By continuing despite these legal protections, Parliament had reduced the judiciary to a state of ‘powerlessness’ and diminished the supremacy of the constitution.
The accessibility of locations was a particularly disputed matter. The court was informed that venues for Nairobi residents were relocated from the Kenyatta International Convention Centre (KICC) to Bomas of Kenya with less than 24 hours’ notice.
‘If two days was problematic, one day is unacceptable,’ counsel submitted, noting that on the very day scheduled for the activity, venues in thirty constituencies were changed.
This ‘zero-day notification’ was characterized as ‘appalling’ and an intentional barrier designed to obstruct genuine public examination. Additionally, the legal team pointed out the absence of supporting documentation and the missing Hansard records from the proceedings to validate the process’s integrity.
They contended that the public was expected to react to a ‘template for public influence’ without the advantage of factual evidence or the chance to seek clarification regarding the allegations.
This, they contended, rendered the exercise incapable of meeting the ‘reasonable notice’ requirement for an issue of such substantial constitutional importance.
They further asserted that the subsequent nomination and approval of Professor Kithure Kindiki as Deputy President is invalid and should be annulled, characterizing it as a preconceived plot to undermine constitutional democracy and resurrect the imperial presidency.
The petitioners seek rulings that the impeachment was unlawful, that Kindiki’s approval is null, and that Gachagua be provided compensation for his unjust removal from office.