High Court upholds public participation in Gachagua impeachment

By Robert Mutasi 

The Milimani High Court made a ruling on the petition filed by Victor Okoth on Thursday, October 3, 2024 , with an application for urgent stay of proceedings in respect to public participation for the impeachment of the Deputy President Rigathi Gachagua. 

Presided over by Justice Bahati Mwamuye, the court certified the application as urgent but refused to stay the public participation scheduled for October 4, 2024.

This is a petition that was filed by Victor Okoth challenging that process and praying for orders that public participation in the impeachment motion presented in the National Assembly be stayed. 

The petitioner prayed for interim orders from the court for stay of the participation exercise and restrain further steps in the impeachment until the matter is fully heard and determined, but the court, while acknowledging urgency of the matter, refused to stop the scheduled process.

Justice Mwamuye, while issuing the order, made it clear that the process of public participation would continue as scheduled, since the Constitution of Kenya, in Article 118, gives a clear mandate on public participation in the business of Parliament, whether it be legislative or impeachment processes.

The court gave a timeline for filing and serving affidavits and replies by the parties, setting a hearing date of October 9, 2024.

The ruling concurs with the stand shared by Aden Duale, the Cabinet Secretary for Environment, who took to his verified social media accounts on Thursday, October 3, 2024, to impress on the need for public participation.

He reaffirmed that public participation is not only a constitutional requirement but also a principle that has been affirmed through numerous court decisions, including those involving high-profile impeachment cases, such as former governors Mike Sonko, Martin Wambora, and Anne Waiguru.

"Public participation is an integral process in the removal processes," Duale said, citing a Supreme Court ruling.

He went ahead to note that, during his service as Leader of the Majority in the National Assembly, the rule of public participation was rigidly applied in lawmaking processes. 

He added that this principle remains critical in the current impeachment motion before Parliament, saying, "It is a guiding rule that cannot be wished away."

Duale's statement came hardly a few hours after the High Court's ruling when he agreed with the court that public participation has to be accorded respect and observed, accordingly. 

"I totally agree with the High Court which this afternoon has declined to stop public participation scheduled to be conducted tomorrow," he said.

The court's further directions are awaited on October 9, as the public participation exercise goes on, while the hearing is preoccupied with an issue in between interim orders or conservatory orders touching on the impeachment motion.

This development presumes a new role in the next chapter of the impeachment proceeding, as courts and Parliament battle the complex interplay of law, politics, and public involvement in Kenya's democratic processes.