Freda Mugambi: Kinde mane okaw e thicho Gachagua ok lich, kaka ne othiche ema chik ng'iyo

[00:00:00]conformity with the constitution, the court ought not to strike it down when a less drastic remedy is available. This principle was affirmed by this court in IEBC versus Minor Kiai and five others.

[00:00:16]Where it was held that interpretive generosity must extend where reason permits to the provisions whose constitutionality is challenged.

[00:00:28]We are not persuaded that the mere existence of a 7-day timeline, taken in isolation and on its face, renders standing order 64 to void. A provision is not unconstitutional simply because it is capable of being applied unconstitutionally.

[00:00:47]The vice lies not in the number of days prescribed, but in what Parliament does or fails to do within those days. The timeline, considered as an abstract legislative proposition, is therefore not in itself the source of any constitutional infirmity.

[00:01:08]The infirmity, where it arises, lies in the number of implement in the manner of implementation and in whatever Parliament, operating within that compressed window, deploys um whether or not Parliament, operating within that compressed window, deploys adequate resources, establishes genuinely accessible structures, and puts in place meaningful mechanisms sufficient to discharge its constitutional obligations of public participation under articles 10, 50, and 118 in substance and not merely in form.

[00:01:49]The distinction we draw is between a provision that is unconstitutional on its face and void in all its applications, regardless of how it is applied, and one that is conditionally constitutional, as in valid in law, but only where its application is accompanied by the institutional efforts and constitutional seriousness that the gravity of impeachment proceedings demands.

[00:02:20]Standing Order 64(2) falls, in our judgment, in the latter category.

[00:02:26]In declining to strike down Standing Order 64(2), we instead note that the timeline prescribed in that Standing Order is not constitutionally mandated.

[00:02:38]Unlike certain procedural requirements that derive their specific content from express constitutional text, the 7-day window is a creature of parliamentary regulation alone.

[00:02:53]Parliament was free to prescribe a longer period and still remains free to do so.

[00:02:59]The experience of the first impeachment of a Deputy President to come before the National Assembly under the Constitution of Kenya 2010 might have been a sobering constitutional experience.

[00:03:12]It may have exposed in real time the structural tensions that compressed timelines have the potential to create when applied to proceedings of national consequence. We commend to Parliament for its serious consideration in the exercise of its sovereign authority to regulate its own proceedings the question of whether the timelines prescribed in Standing Order 64(2) remain adequate in light of this experience and whether a timeline that builds in more time for public participation and for the Assembly to deliberate to the gravity that remove of from constitutional office demands would not be more befitting of the constitutional moment that the impeachment invariably pre- represents.

[00:04:06]As it stands, however, we find nothing unconstitutional about the standing.