Gachagua impeachment was a parliamentary coup, court told

Former Deputy President Rigathi Gachagua’s impeachment was a parliamentary coup, the High Court heard on Thursday during the second day of the hearing.

While questioning the October 2024 process, lawyers representing Gachagua, Kirinyaga Woman Representative Njeri Maina, Sheria Mtaani, Shadrack Wambui, Mount Kenya lawyers’ lobby group Gema Watho, and lawyer Ndegwa Njiru argued that Parliament set aside the Constitution and its procedures and used its numerical strength to settle political scores between President William Ruto and Gachagua.

The bench comprising Justices Eric Ogola, Freda Mugambi and Antony Mrima was told that the impeachment was conceived months before the fallout between Gachagua and his boss became public. It emerged that Sirisia MP John Waluke had allegedly been considered as the initial mover of the motion.

However, lawyer Kibe Mungai told the court that by August 2024 it had become clear that the two Kenya Kwanza allies were no longer aligned politically.

According to him, there were claims that President Ruto intended to drop Gachagua ahead of the 2027 elections, allegedly hinting during a Women’s Day event that his future deputy would be a woman.

The lawyers maintained that the impeachment was not based on any criminal wrongdoing by Gachagua, but was instead driven by a political fallout that played out in the public domain. “Regrettably, it appears in retrospect that we might have celebrated too soon. The Constitution creates a powerful Parliament as the supreme political and law-making body. Yet Parliament has chosen to act as subservient, sheepish and sycophantic, reminiscent of the Sixth Parliament that existed between 1988 and 1992,” argued Kibe.

He added that it was never anticipated that the Third Parliament under the 2010 Constitution would face public backlash, including protests by young Kenyans, in an effort to make it responsive to citizens’ concerns.

Lawyer Ole Kamwaro, on his part, told the court that Members of Parliament had effectively staged a coup by relying on numerical strength while disregarding strict constitutional requirements for the removal of a Deputy President.

He accused MPs and Senators of hypocrisy, arguing that although they publicly condemned tribal politics, they themselves engaged in similar practices in government appointments and political mobilisation. “The impeachment characterises a textbook parliamentary coup. When plunder becomes a way of life, a legal system is fashioned to authorise it. This is not truly a case about impeachment. It is about the use of constitutional processes to legitimise a predetermined outcome,” he submitted.

He added that both Houses of Parliament had set a dangerous precedent by allowing the tyranny of numbers to override constitutional safeguards. “Yet when it comes to political expediency, the same actors, the real tribalists, turn to accuse others while claiming moral authority,” he said.

Lawyer Andrew Muge told the court that public participation in the impeachment process failed constitutional standards. He argued that documents submitted by Parliament showed that only 125 comments, 19 shares and 203 likes were recorded online.

Muge further accused Parliament of inflating figures relating to physical attendance during public participation exercises, saying it was impossible for 30,000 people to have participated within the limited timeframe provided. “Public participation ended at 5pm on both days. The information being presented is misleading. Even if each person took a minute, it would take 30,000 minutes. That is more than seven days. The figures are fictional,” he argued.

He further stated that public participation was reduced to a box-ticking exercise, without proper explanation of what citizens were being asked to comment on or approve.

He also told the court that Parliament failed to properly consider the public participation report presented by Suba South MP Millie Odhiambo, adding that in at least 20 constituencies, venues for public participation were changed on the day of the exercise, undermining accessibility and transparency.

Lawyer Wambui, also representing Sheria Mtaani, argued that the impeachment process was not purely political but a sui generis procedure with both constitutional and legal dimensions.

He said the proceedings of October 19, 2024, as well as events of October 17, were rushed and unconstitutional, and that the Senate appeared to have disregarded Article 145 of the Constitution.

He further argued that a key procedural step was ignored when Parliament failed to establish a special committee to investigate the motion. “In the absence of such a committee, it would be improper for the Senate to effectively investigate itself through a plenary sitting,” he said.

Lawyer Wanjiku Waithera argued that Gachagua’s successor, Prof Kithure Kindiki, was unlawfully appointed. She stated that at the time of appointment, he was still serving as Interior Cabinet Secretary, and that the Independent Electoral and Boundaries Commission (IEBC) was not fully constituted.

Lawyer Ndegwa Njiru submitted that impeachment should have been a last resort.

He argued that the Deputy President does not enjoy immunity under the Constitution and should have first been subjected to criminal proceedings before Parliament could rely on such allegations for impeachment.

He maintained that Gachagua was never found guilty of any of the accusations levelled against him, adding that MPs acted simultaneously as accusers, prosecutors, jurors and judges.

In response, the National Assembly and the Senate maintained that Gachagua was given a fair opportunity to defend himself throughout the process. They said he was impeached by the Senate on five grounds.

Lawmakers alleged that Gachagua made inflammatory remarks likening government to a “dairy cow” from which certain groups deserved priority benefits, which they said undermined national unity.

They further argued that his references to “children of the home and children of the neighbours” created a hierarchy of citizenship.

They also accused him of publicly contradicting President Ruto, which they claimed amounted to insubordination.

Additionally, MPs alleged that he interfered with Nairobi County’s City Market planning and made disparaging remarks about governors.

Another allegation was that he publicly criticised Justice Esther Maina after she ordered the forfeiture of Sh200 million believed to be proceeds of corruption.

The hearing continues on Friday.