Kanjama: Gachagua remains eligible to vie for public office

Law Society of Kenya president Charles Kanjama has argued that former Deputy President Rigathi Gachagua remains eligible to contest for public office despite the High Court upholding his impeachment, saying the appeals process must first be exhausted.

Kanjama cited Articles 73, 75 and 99 of the Constitution, particularly Article 99(3), which provides that a person removed from office for violating Chapter Six of the Constitution is disqualified from holding elective office only after all avenues of appeal have been concluded.

He noted that Gachagua had challenged his impeachment in the High Court and secured a partial victory after the judges found that his right to a fair hearing had been violated during the Senate proceedings.

“A plain reading of Article 99(3) shows that his right to vie for public office is still open, is still alive until such a time as the Supreme Court will give its final determination. The High Court left open the question of whether all the fruits of impeachment will still apply after upholding the finality of impeachment,” he said.

However, Kanjama said the court left unanswered questions about whether all the legal consequences flowing from the impeachment remain in force.

According to Kanjama, the matter is far from settled as the case is expected to proceed to the Court of Appeal and, potentially, the Supreme Court.

“If the Supreme Court upholds the impeachment, that is what will extinguish his right to vie. The court was not clear on it; it could have been clear by making a declaration that the outcome of the impeachment will not have any consequence,” he said.

The LSK President also faulted the judgment for failing to clearly pronounce itself on the political implications of the impeachment.

Kanjama argued that the finding that Gachagua's right to a fair hearing had been violated creates uncertainty over whether all the consequences of impeachment can stand.

“My interpretation is that because the court has found that there has been a violation of the right to a fair hearing, of necessity, the fruits of the impeachment cannot all be sustained. The finality in terms of bringing in a new Deputy President has been sustained, but the other fruits of impeachment, which is to stop the Deputy President from running again, cannot be sustained.”

“The outcome is fairly confusing,” Kanjama said.

Gachagua moved to the Court of Appeal to challenge the High Court's judgment on his impeachment, with his legal team informing the court that a notice of appeal has already been filed.

This is after a three-judge bench dismissed Gachagua's petition challenging his ouster, finding that both the National Assembly and the Senate followed the law and afforded him an adequate opportunity to defend himself against the charges.

Moments after the bench delivered its decision, lawyer Njeri Maina requested certified copies of the proceedings and judgment to facilitate the appeal process.

Maina said the request was being made on behalf of all the petitioners involved in the matter and urged the court to expedite the documents.

“May it please you, my Lords, my Lady. Njeri Maina for the third petitioner. I wish to request the typed certified proceedings and the certified judgment. My Lords, my Lady, for the tidiness of the proceedings, I request it on behalf of all other petitioners in this matter. The third petitioner has already filed their notice of appeal,” she said.