The High Court has declined to issue conservatory orders to prevent the tabling of an impeachment motion against Deputy President Rigathi Gachagua, scheduled for discussion in Parliament on October 1, 2024.
Judge Bahati Mwamuye delivered the verdict, dismissing the request from Gachagua’s allies, including former United Democratic Alliance Secretary General Cleophas Malala.
While the court did not grant the request to block the motion, it recognized the urgency of Malala’s petition, instructing him to serve the National Assembly and the Senate, as well as their speakers, Moses Wetangula and Amason Kingi, by the close of business on September 30, 2024.
The judge emphasized that the case would be prioritized and directed both houses to respond by October 3, with a mention scheduled for October 7.
Malala’s petition centers on the assertion that both the National Assembly and the Senate are unlawfully constituted, lacking the constitutional mandate to discuss impeachment due to their failure to adhere to the two-thirds gender representation rule outlined in Articles 27(8) and 81(b) of the Constitution of Kenya.
He argued that this failure renders the Parliament’s composition unconstitutional, thus invalidating any proceedings conducted, including impeachment motions.
In court, Malala’s lawyer, Mwenda Njagi, articulated that the ongoing violation of the two-thirds gender principle undermines the constitutional rights of women, depriving them of equality and freedom from discrimination.
Njagi highlighted that the legitimacy of any parliamentary action, including impeachment, is compromised under these conditions.
Malala referred to several court rulings and advisory opinions from the Supreme Court, including one from December 11, 2012, which emphasize the necessity for Parliament to enact legislation enforcing the two-thirds gender rule. He argued that Parliament’s failure to comply with these judicial directives deepens its illegitimacy.
“An unconstitutionally constituted body is incapable of lawfully discharging its constitutional duties, including processing and hearing impeachment motions,” Njagi stated, emphasizing that any decisions made by the current National Assembly and Senate regarding impeachment would be flawed and invalid.
He further warned that allowing the impeachment to proceed under these circumstances could expose the country to instability and potential anarchy, undermining the rule of law.
Njagi stressed the serious implications for Gachagua, arguing that proceeding with the impeachment could result in “irreparable harm,” including permanent disqualification from holding public office in Kenya.
He contended that the impeachment process must be conducted with strict adherence to legality and fairness, necessitating a properly constituted Parliament.
Malala maintained that the failure to comply with the gender rule signifies that Parliament lacks the necessary quorum to lawfully hear the impeachment proceedings, rendering any decisions made by such a body null and void.
In a related development, four additional Kenyans have filed separate petitions aimed at halting Gachagua’s impeachment.
Their lawyer, Ndegwa Njiru, expressed concerns regarding the potential for the impeachment to proceed without mandatory public participation, further complicating the legal landscape surrounding this significant political event.
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