Court Drama! Judges Reject Claims That Speakers Were Politically Biased!

[00:00:00]public participation at the National Assembly, two, whether the Senate was obligated to conduct public participation and if so, to what extent, three, whether public participation was required at the point of nomination and appointment of His Excellency Kindiki.

[00:00:19]Issue number four, constitutionality and legality of the standing orders. One, whether standing order number 64 sub order two and 65 of the National Assembly are unconstitutional, two, whether standing order number 75, 78, 79 and 80 of the Senate are unconstitutional.

[00:00:45]Issue number five, composition of the National Assembly and the IEBC and the nomination of the Deputy President. One, whether the National Assembly was properly constituted to consider the impeachment motion in light of the two-third gender rule, two, whether the nomination of a Deputy President can be legally finalized or approved in the absence of fully constituted commissioners of the IEBC under articles 82 and 88 of the Constitution, three, whether the nomination of Hon. Kindiki while serving as a cabinet secretary is constitutionally infirm for violating the eligibility criteria under article 148 as read with article 137.

[00:01:37]Issue number six, constitutional processes. Whether the Senate was obligated under article 150 sub article two to apply articles 144 and article 145 with necessary modifications to the Deputy President and whether its failure to do so rendered the process invalid and unconstitutional ab initio.

[00:02:01]We'll also look at relevant standing orders and doctrine of immunity.

[00:02:06]Two, whether Parliament was obligated to consider and exhaust alternative accountability mechanisms. That is criminal civil proceedings, EACC, DCI, etc. And whether the lack of legislation to operationalize Article 150 of the Constitution vitiates the impeachment.

[00:02:26]Three, whether the Senate ought to have established a special committee under Article 145 sub-article 3 of the Constitution. Four, whether the speed of the gazettement of the Senate resolution, the nomination of His Excellency Kindiki by His Excellency President Ruto, and the voting by the National Assembly on His Excellency Kindiki as the DP nominee contravened the Constitution and the law.

[00:02:57]And issue number seven, fair trial, whether the trial conducted by the Senate in respect of His Excellency Gachagua was lawful, fair, and in conformity with the constitutional guarantees of fair administrative action and fair hearing under Article 47 and Article 50 of the Constitution, respectively.

[00:03:22]We shall now turn to the analysis of each issue and its attendant sub-issues in the order set out above.

[00:03:33]Jurisdiction.

[00:03:34]>> [clears throat] >> The position in owners of the motor vehicle vessel Lillian S versus Caltex Oil Kenya Limited 1989 KLR 1 remains as instructive today as it was when it was first pronounced.

[00:03:52]But jurisdiction is everything and a court that proceeds without it does so in vain.

[00:03:59]It is therefore necessary before turning to the substantive grievances raised in these petitions to resolve the threshold jurisdictional question that permeated the pleadings and submissions of almost all parties on whether the impeachment of a deputy president is amenable to judicial scrutiny or whether it falls exclusively within the political domain of parliament and is therefore beyond the reach of courts.

[00:04:26]The respondents urge this court to exercise restraint contending that impeachment is a political accountability mechanism constitutionally entrusted to parliament and that courts ought not to transform themselves into appellate chambers reviewing parliamentary decisions.

[00:04:45]The petitioners maintain that while impeachment is undoubtedly political in context and consequence, it remains a constitutionally regulated process subject to constitutional supremacy, the Bill of Rights and judicial oversight.

[00:04:59]The resolution of these competing positions requires an examination of the constitutional architecture established under the Constitution of Kenya 2010.

[00:05:09]The starting point is the supremacy and delegated authority provisions found in the Constitution. Article 1 vests all sovereign power in the people to be exercised either directly or through democratically elected representatives. Parliament, the executive, and the judiciary are therefore not sovereign institutions in themselves. They are repositories of delegated sovereign authority deriving their legitimacy from and remaining accountable to the people.

[00:05:41]Article 2 declares the Constitution to be the supreme law of the Republic binding all persons and all state organs at both levels of government. The inevitable consequence is that no state organ, including Parliament, enjoys immunity from constitutional scrutiny.

[00:05:58]The Constitution of Kenya does not recognize parliamentary supremacy.

[00:06:03]It entrenches constitutional supremacy, and that supremacy is absolute and admitting of no exception.

[00:06:12]The Supreme Court gave authoritative expression to this principle in Just as Kariuki Mariba and another versus Martin Nyagah Wambora and another, 2017 uh eKLR, where it emphasized that no arm of government is above the law, that this being a constitutional democracy, the Constitution is the guiding light for the operations of all state organs.

[00:06:37]It further determined that the court's mandate, where it applies, is for the purpose of averting any real danger of constitutional violation. It follows, as a matter of necessary constitutional logic, that whenever Parliament exercises authority under articles 145 and article 150 of the Constitution, it does so not as a sovereign body wielding an unreviewable discretion, but as a constitutional organ exercising delegated authority within and subject to the limitations that the Constitution prescribes.

[00:07:12]The jurisdiction The jurisdiction of this court to entertain these petitions is firmly grounded in articles 22, 23, and 165 of the Constitution. Article 165 sub article 3D expressly empowers the High Court to determine questions of constitutional interpretation, including whether anything done under the authority of the Constitution or any law is inconsistent with or in contravention thereof, and it is precisely that question that lies at the heart of these proceedings.

[00:07:45]Article 23 vests in this court jurisdiction to enforce the Bill of Rights and to grant appropriate relief where constitutional rights and freedoms have been violated, are threatened, or are likely to be infringed.

[00:07:59]The breadth of that jurisdiction is a deliberate constitutional design, design that reflects the transformative aspirations of the Constitution of Kenya 2010 and the indispensable role assigned to the judiciary as the ultimate guardian of constitutional supremacy and the protector of the rights of every person within the Republic. This court does not approach the jurisdictional question as one of first impression.

[00:08:32]In its ruling delivered on 31st of October 2024, this bench considered and conclusively determined the selfsame jurisdictional challenge that the respondents now seek to resurrect. The court held that the broad jurisdiction vested in the High Court under Articles 23, 22, and 165 extends to determining whether the powers exercised by the National Assembly and the Senate in impeachment proceedings conformed to constitutional requirements.

[00:09:02]Had the framers of the Constitution intended to exclude the High Court's jurisdiction in matters arising under Article 145, that would have they would have done so in express terms as they demonstrably did in relation to certain proceedings under Article 144.

[00:09:22]The argument that impeachment proceedings are beyond judicial scrutiny sits uneasily with the constitutional with the constitutional text.

[00:09:31]The Constitution of contains no provision excluding impeachment from judicial review and no clause creating islands of authority immune from constitutional control. Where allegations are made that constitutional procedures are violated, rights infringed, or constitutional standards disregarded as in the present case, this court would itself violate the Constitution were it to decline jurisdiction merely because the dispute arises in a politically sensitive context.

[00:10:02]As Chief Justice Marshall observed in versus Virginia uh 19 US 6 feet 264 in the year 1821, the court said, "It is most true that this court will not take jurisdiction if it should not, but it is equally true that it must take jurisdiction if it should.

[00:10:25]We have no more right decline exercise of jurisdiction which is given than to usurp that which is not given. The one on the other or the other would be treason would be treason to the Constitution."

[00:10:42]Close quote.

[00:10:43]That observation resonates fully within Kenya's constitutional order. The presence of political implications does not extinguish this court's constitutional duty to interpret, protect, and enforce the Constitution.

[00:10:58]Even within the argument on separation of powers, this court accepts that impeachment is principally a parliamentary function under articles 145 and 150. However, separation of powers does not mean separation from the Constitution. As the Supreme Court held in the matter of the speaker of the Senate and another 2013 KL none of the arms of government can claim an exclusive preserve free from constitutional scrutiny, and it is the responsibility of the courts to ensure that the exercise of power by state organs remains within constitutional bounds. The Court of Appeal affirmed in Mwenje Mutemi versus Trusted Society of Human Rights Alliance and five others, that was in 2013, that the Constitution establishes not a rigid wall of separation, but a system of separation of powers tempered by checks and balances within which no arm of government is superior to another. The doctrine therefore requires mutual respect among constitutional institutions, not mutual exclusion, and Parliament cannot invoke it as a shield against constitutional accountability.

[00:12:13]Within the realm of impeachment proceedings specifically, the Supreme Court in Justice Kariuki Mutemi and another versus Martin Nyaga Wambora of 2017, the Supreme Court signaled that it would be reluctant to question parliamentary procedures as long as they did not breach the Constitution, and that the mandate of the courts is restricted by the doctrine of separation of powers to deciding on matters of individual rights and fundamental freedoms, and not to inquire into how the County Assembly and the Senate perform duties in which they alone have discretion, nor to review the merits of the decision to impeach.

[00:12:56]We are therefore satisfied that this court is being correctly called upon to scrutinize and pronounce itself on the constitutional regularity regularity of the impeachment process. To do To do so To do so neither impinges upon nor offends the doctrine of separation of powers. As the Constitutional Court of South Africa observed in Doctors for Life International versus Speaker of the National Assembly and others, in quote, "While [clears throat] the doctrine of separation of powers is an important one in our constitutional democracy, it cannot be used to avoid the obligation of a court to prevent the violation of the constitution. The right and the duty of this court to protect the constitution are derived from the constitution and this court cannot shirk from that duty." Close quote.

[00:13:48]That proposition applies with equal, if not greater, force within Kenya's constitutional order. To decline the obligation of constitutional adjudication in the in indifference to the political character of impeachment proceedings would not be an act of judicial restraint, but an act of judicial abdication.

[00:14:12]On the political question doctrine, the respondents place reliance on Nixon versus United States, 506 U.S.A. 224 1993, where Walter Nixon, a federal district court judge, removed from office, removed from office by the Senate, challenged the procedure by which his impeachment trial had been conducted.

[00:14:35]The United States Supreme Court held that the manner in which the Senate conduct conducts impeachment trials is a non-justiciable political question. The conduct of such trials having been textually committed by the constitution exclusively to the Senate.

[00:14:51]While Nixon offers useful guidance on the need for political restraint in matters constitutionally committed to other branches, a clear distinction must be drawn when transplanting that decision into the Kenyan constitutional context.

[00:15:07]The constitution of Kenya contains an expe- expansive Bill of Rights enforceable under Article 23, broad and explicit judicial review powers under Article 165 sub-article 3D, and a constitutional supremacy clause under article 2 that expressly subjects every excess of power of public power without exception to constitutional scrutiny and accountability.

[00:15:32]Unlike the United States Constitution, the Constitution of Kenya does not textually commit impeachment proceedings to Parliament in terms of exclusive of judicial oversight.

[00:15:46]The place of the political question doctrine within Kenya's constitutional order has been authoritatively addressed by the domestic courts at the highest levels. The Supreme Court elaborated upon this position with specific reference to impeachment proceedings in Mike Mbuvi Sonko versus County Assembly of Nairobi 2022. The court held that courts are permitted to intervene where matters of constitutional violations arise in impeachment processes, reasoning that although impeachment is a political process sanctioned by the Constitution, neither the County Assembly nor the Senate can act outside the confines of the Constitution and the law. For to do so would invariably invite the court's intervention. The Supreme Court clarified that the mandate of the courts was to determine whether the individual's rights, dignity, and fundamental freedoms had been preserved and protected in the process without usurping the powers and functions of the legislative branch of government.

[00:16:47]Those principles were further articulated in a five-judge bench decision of this court in Ramogi and three others versus Attorney General 2020 where the court held that the critical constitutional inquiry is not whether a dispute is political in character, but whether it raises constitutional or legal questions capable of judicial determination.

[00:17:09]Where constitutional standards exist against which the impugned conduct may be measured, a court is not at liberty to decline jurisdiction on grounds of political contentiousness alone. The court observed that where that were caused to decline jurisdiction whenever a dispute bore political implications, constitutional violations committed within political processes would be left entirely without remedy, an outcome fundamentally irreconcilable with articles 2 and 3 of the constitution.

[00:17:39]Taken together, these authorities establish that the political question doctrine in Kenya is not a doctrine of abdication, but one of restraint. It requires courts to distinguish between political choices entrusted to the political branches of government and questions of constitutional compliance entrusted to the judiciary. The former ordinarily lie beyond judicial competence, the latter falls squarely within the judicial function.

[00:18:07]In light of the foregoing, we reiterate that the court is not a political arbiter, but a constitutional one. We agree in principle with the submission that it is not the function of this court to determine whether the charges against His Excellency Gachagua were of sufficient gravity to warrant his removal removal from office. Those are quintessentially parliamentary judgments constitutionally entrusted to the National Assembly and the Senate. We decline any invitation to venture into the merits of the charges upon which the impeachment was founded. The court's obligation is to ensure that the impeachment process, however political its character and however significant its consequences, was conducted in accordance with the constitution, the rule of law, and the procedural and substantive safeguards the constitution prescribes.

[00:18:58]Where that standard was met, we will say so. Where it was not, we are equally bound to say so. For it is in the faithful discharge of that obligation, and not in deference to political outcomes, that the legitimacy of this court's intervention ultimately rests.

[00:19:15]Accordingly, we find that the impeachment proceedings challenged in these petitions are justiciable, and that this court possesses jurisdiction under articles 23, 22, and 165 of the Constitution to determine whether the National Assembly and the Senate acted within constitutional bounds, complied with constitutional procedures, respected constitutional rights, and remained faithful to the constitutional safeguards governing the impeachment of a Deputy President.

[00:19:50]Second sub-issue, predetermination and bias.

[00:19:58]The petitioners contended that the impeachment proceedings against His Excellency Rigathi Gachagua was tainted by actual bias, apparent bias, conflict of interest, and predetermination on the part of the speakers of the National Assembly and the Senate, members of Parliament, senators, and other constitutional actors involved in the impeachment process.

[00:20:18]It was their case that various public statements, political conduct, and procedural decisions demonstrated that the outcome of the impeachment had effectively been determined before the proceedings commenced, and that the constitutional actors involved had failed to approach the process with the impartiality and openness required under articles 27, 47, and 50 of the Constitution.

[00:20:43]The constitutional foundation of the petitioners' claim lies principally in article 27, 47, and 50 of the Constitution. Article 27 guarantees equality before the law and the equal protection and equal benefit of the law.

[00:20:57]Article 47 guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair. Article 50 sub-article 1 guarantees every person the right to have any dispute that can be resolved by the application of law determined in a fair and public hearing before a court or where appropriate an independent and impartial tribunal or body.

[00:21:25]The constitutional requirement of impartiality is not confined to court of law.

[00:21:30]Whenever a constitutional body exercises adjudicative, disciplinary, investigative, or quasi-judicial authority affecting rights, interests, status, or public office, the process must comply with constitutional standards of fairness, impartiality, and procedural propriety. This principle was affirmed by the Court of Appeal in Chole versus Judicial Service Commission and three others in 2013 and [clears throat] Judicial Service Commission versus Mbalu Mutava and another, Civil Appeal number 52 of 2014, where the court emphasized that constitutional and administrative decision-making processes are subject to the requirements of procedural fairness and natural justice.

[00:22:11]In Mbalu Mutava, which I've mentioned above, the Court of Appeal observed that Article 47 transformed the common law principles of natural justice into constitutional imperatives, such that whenever public power is exercised in a manner affecting legal rights, status, or legitimate expectations, constitutional standards of fairness become directly applicable.

[00:22:35]In Chole case, the Court of Appeal reaffirmed that public bodies exercising disciplinary or quasi-judicial authority must act fairly and impartially, and that public confidence in constitutional institutions depends not only on actual fairness, but equally upon its appearance.

[00:22:56]The rule against bias is one of the oldest and most fundamental principle of natural justice embodied in the maxim Nemo judex in causa sua, that no person shall be a judge in their own case.

[00:23:09]Historically, directed at preventing decision-makers from participating in matters in which they held a person a personal financial or proprietary interest, the doctrine has over time expanded to to encompass circumstances giving rise to a reasonable apprehension that a decision-maker may not approach a matter with the requisite impartiality, even in the absence of any direct personal interest.

[00:23:34]The modern test [clears throat] for apparent bias was authoritatively stated by the Supreme Court in Rai and three others versus Rai and four others, 2013 KLR, where the court adopted the objective test and held that the inquiry must be conducted from the perspective of a fair-minded and informed observer. The court emphasized that allegations of bias cannot be founded upon speculation, conjecture, suspicion, or dis- dissatisfaction with the outcome of proceedings. There must exist objective circumstances capable of giving rise to a reasonable apprehension that the decision-maker may not bring an impartial mind to bear on the subject.

[00:24:18]The Supreme Court reaffirmed and elaborated upon these principles in Kaplana Rawal and two others versus Judicial Service Commission in 2016, observing that the question is not whether a party genuinely believes that a tribunal is biased, but whether a reasonable and informed observer, having considered all relevant facts, would conclude that there exists a real possibility of bias.

[00:24:45]The court further recognized that constitutional institutions must be protected from unsubstantiated allegations capable of paralyzing their functioning, and accordingly insisted upon an objective evidential foundation before a during principle first established in R versus Sussex Justices ex parte McCarthy 1924 1 KB 256 that justice must not only be done but must manifestly and undoubtedly be seen to be done and underscored that public confidence in constitutional institutions depends significantly upon the appearance of impartiality and not merely its substance. From these authorities, several important principles emerge.

[00:25:44]First, the test for apparent bias is objective, not subjective. Second, the inquiry must be conducted from the standpoint of a fair-minded and informed observer. Third, mere suspicion, political disagreement, dissatisfaction with a a decision, or an adverse outcome does not, without more, establish bias.

[00:26:05]Fourth, and critically, there must exist objective circumstances capable of giving rise to a reasonable apprehension that the decision-maker did not or could not approach the matter impartially.

[00:26:18]Jurisprudence further establishes that bias and predetermination, though related in concept, are legally Bias concerns the existence of actual or apparent partiality or on the part of the decision-maker.

[00:26:34]Predetermination concerns a state of mind in which the decision-maker has effectively closed their mind to the evidence and argument and reached a final conclusion before the process has run its course.

[00:26:47]The distinction was eliminated by the English Court of Appeal in Lace vs. Redcar and Cleveland Borough Council in 2008, where the court drew a clear line between predisposition and predetermination.

[00:27:03]Decision-makers may legitimately hold predispositions, inclinations, or preliminary views on matters before them.

[00:27:13]That is the inevitable consequence of experience and engagement in public affairs. What the law prohibits is predetermination, which is a state of mind so closed to persuasion that no amount of evidence or argument is capable of altering the ultimate outcome.

[00:27:33]In light of the authorities that we have cited, we hold the view that the mere fact that members of Parliament or senators publicly supported or opposed the impeachment of His Excellency Gachagua cannot, standing alone, establish constitutional bias. To hold otherwise would render impeachment proceedings practically unworkable and would be inconsistent with inherently political character that the Constitution itself recognizes in such proceedings. Legislators are not expected to approach impeachment as blank slates devoid of political opinion or prior knowledge. What the Constitution requires is that they remain genuinely open to considering the evidence, listening to argument, and discharging their constitutional responsibilities in good faith and within constitutional limits.

[00:28:23]We are, accordingly, not persuaded by the proposition that bias may automatically >> respective houses. They are not and were never intended the substantive constitutional decision makers on the question of whether an impeachment should succeed or fail.

[00:30:23]We are accordingly not satisfied with the broad proposition advanced by some of the petitioners that the speakers' mere participation in the proceedings or involvement in political arguments in is sufficient to establish constitutional bias or conflict of interest. The constitutional decision makers under 145 and and Article 150 are members of Parliament and senators collectively collectively acting through the the respective houses of Parliament.

[00:30:54]We therefore find that the allegations of bias, predetermination, and conflict of interest advanced by the petitioners against the speaker the speakers, members of Parliament, and senators are on the material before this court no more than bare and unsubstantiated assertions grounded in political inference and suspicion rather than in objective evidence capable of satisfying the test authoritatively prescribed in the Rai, Rawal, and Tunoi decisions.

[00:31:28]>> The other issue The other main issue relates to public participation.

[00:31:37]In dealing with this topic, we address ourselves to three distinct but interrelated questions. First, whether the public participation exercise conducted by the National Assembly met the constitutional threshold required under Articles 10 and 118 of the Constitution.

[00:31:58]Second, whether the Senate, upon receipt of the impeachment motion, was itself obligated to carry out a public participation exercise before voting on the impeachment. And third, whether the public participation was required at the point of nomination and appointment of His Excellency Kindiki as Deputy President. The petitioners collectively contended that public participation in the impeachment process was constitutionally deficient, inadequate, and in certain stages wholly absent, rendering the entire process null and void. Their challenge was um mounted at the three levels.

[00:32:44]And the petitioner advanced um They attacked the National Assembly's public participation exercise as being deficient both in substance and procedure. They argued that the public was given less than 48 hours to digest complex charges, that the template um used reduced their participation to binary support or not support choice, that His Excellency Gachagua's own response was withheld, depriving citizens of balanced information, that many venues were inaccessible, changed without notice, or restricted to party members. They also pointed to defiance of conservatory orders requiring constituency-level hearings, vagueness of the same-day notice of the 5th of October 2024, anomalies in the participation report such as a report support rate exceeding 100% and tabling of that report moments before the debate. They also concluded that the scale of participation uh of about 200,000 citizens out of a population of 52 million was negligible and incapable of meeting the constitutional standards.

[00:34:05]Um With respect to the Senate, they contended that Senate conducted no public participation at all. No notices were issued, no hearings convened, no submissions received. They emphasized Senate's role was was determinative and quasi-judicial and therefore attracted an independent obligation to facilitate public participation.

[00:34:31]They argued that this obligation could not be discharged by curiously through the National Assembly and that by proceeding without its own engagement, the Senate compounded the defects of the Assembly's process and arrogated sovereign power that the Constitution requires to be exercised with by the people.

[00:34:54]>> [snorts] >> Finally, they challenged the approval of H.E. Kindiki as Deputy President and argued that no public participation preceded the vote, yet that approval constitutes what is known as other business under Article 118 1B, which requires public involvement. They highlighted the compressed timelines in the Senate impeachment vote on the 17th of October, the nomination of His Excellency Kindiki the same night, and approval by the the following morning as evidence that the process was concluded overnight without public input. They distinguish this midterm vacancy scenario from a general election, noting that in elections, the people exercise sovereignty directly through the ballot, whereas in midterm appointments, public participation is the only available mechanism for engaging the people's will, and on that basis prayed for declaration that the nomination, approval, and appointment of His Excellency Kindiki were unconstitutional.

[00:36:00]The respondents, quite in summary, maintained that the National Assembly's public participation exercise was adequate. It was reasonable and fully compliant to the constitutional requirements. They argued that notices were disseminated through the gazette, through newspapers, through Parliament website, and social media, and that multiple channels of participation were available. They defended the two day notice period as reasonable given the strict timelines under Article 145.

[00:36:34]They further justified the tick-box template as a deliberate design to structure responses and prevent manipulation, noting that citizens could still submit their memoranda or pub- or all or or oral views.

[00:36:55]Um they argue that participation by over 223,000 citizens was characterized as unprecip- unprecedented civic engagement, and they dismissed the isolated disruptions as immaterial. They argue that there was no obligation to share His Excellency Gachagua's report with uh response with the public since the public's role was to express views, not to adjudicate. On the sec- Senate stage, the respondents uh in summary a quasi-judicial uh quasi-judicial capacity during impeachment and not as a leg-