'GACHAGUA'S IMPEACHMENT WAS A CONSTITUTIONAL FRAUD!' Gachagua's Lawyer tells Court, defends Gachagua

Added: 2026-05-05

[00:00:00]and my lady to find that that standing order 64 two in specific and to the extent relevant 646 are unconstitutional, null and void to the extent that they impose timelines whose purpose and effect is to undermine article 10 of the national values. Article 118 on participation by the public. Article one on sovereignity.

[00:00:42]Article two and article 124 of the constitution.

[00:00:52]My lord, this is not an attack on parliamentary autonomy.

[00:00:57]It is a defense of constitutional supremacy and we proceed to demonstrate as follows.

[00:01:06]A procedural rule that makes meaningful public participation impossible is itself unconstitutional.

[00:01:16]However neatly drafted, the vice in standing order 64 is not merely that it provides timelines. The problem is that those timelines are constitutionally disabling. And I will demonstrate what uh standing order 64 provides. It requires one, the National Assembly's speaker to dispose of an impeachment motion within 3 days of its notification.

[00:01:51]Thereafter it provides the disposal of the impeachment motion by the national assembly within a period of only 7 days. We have 339 members of the national assembly who are supposed to dispose of the impeachment motion within 7 days. And lastly, it provides for transmission of the resolution of the National Assembly once they've passed the motion to the Senate within 2 days.

[00:02:28]The real vice falls under section sorry under standing order 642 where the National Assembly has only 7 days within which to dispose of uh the impeachment motion.

[00:02:47]This standing order compresses a matter involving recusal reversal sorry of several sovereign electoral choice into 12 days thereby making meaningful public participation elassory and where participation becomes elassery.

[00:03:08]Articles 10 on participating participation of the people being a national value and principle of governance is affected and article 118 on public access and participation is also affected.

[00:03:30]Article two my lord of the constitution is supreme.

[00:03:36]anything inconsistent with it is void.

[00:03:41]The standing orders themselves derive the authority under article 124 of the constitution and therefore they do not sit above the constitution and cannot cut down constitutional obligations.

[00:03:59]The Supreme Court in mate and another versus Wambora and another 2017 the court held as follows. Courts have jurisdiction to interrogate even parliamentary standing orders for constitutional compliance.

[00:04:21]So this principle my lords and my lady my lady answers any argument by the respondents of nonjusticeability.

[00:04:35]This honorable court is being invited to supervise parliamentary politics.

[00:04:44]It is being invited to perform its constitutional duty of reviewing constitutionality.

[00:04:52]My lords and my lady, constitutionality is judged not only by text but by purpose and effect. So we look at what is the purpose of standing order number 642.

[00:05:09]Its purpose is to force expedited disposal of impeachment motions.

[00:05:17]But what is its effect in reverse? To restrict parliament ability to facilitate meaningful public participation in the impeachment uh proceedings.

[00:05:34]With this standing order number 642 has a purpose and effect that undermines constitutional rights and national values and principles of governance and therefore should be found to be invalid.

[00:05:57]The petitioner specifically pleads this at paragraph 98 of its further amended petition and that is the vice before this honorable court.

[00:06:15]My lords and my lady, impeachment is not ordinary parliament business and that has been admitted by the respondents when they say impeachment is not necessarily a legislative process.

[00:06:33]It seeks removal of a directly elected constitutional office holder and in practical terms revisits the sovereign will expressed at the ballot.

[00:06:48]It is that serious.

[00:06:53]Such a process demands heightened constitutional safeguards, not reduced ones like we have seen in standing order number 64.

[00:07:07]Yet standing order 64 does exactly the opposite. My lord, that inversion should then be found to be unconstitutional.

[00:07:21]My lord, I won't repeat what has been submitted before you on public participation.

[00:07:27]However, you've heard clearly that public participation conducted on the 4th and 5th of October 2024 did not meet the threshold of the principles laid out in the BAT um case. This is the British American Tobacco Kenya PLC versus cabinet secretary of the Ministry of Health. And allow me to just point out what violations um were made. And had we had more time, had the National Assembly provided for more time in its uh standing orders, perhaps they would have averted these particular violations. One, Mr. Swanya indicated of the no reasonable notice was issued. A notice of extension of public participation was issued on the 5th of October 2024 which was the last day in D day for public participation.

[00:08:23]There was no reasonable notice whatsoever.

[00:08:26]There was no informed participation.

[00:08:30]The people of Kenya were provided with information that was minus the defense by the first petitioner where they had one-sided story for them to consider whether to impeach or not to impeach the second deputy president.

[00:08:52]There was no balanced influence. We've heard clearly that at Bulmer of Kenya, participants were allegedly told were actually told that the forum was for invited members of the Orange Democratic Movement.

[00:09:11]That's ODM party members of parliament swayed participants during this engagement. We've heard that. Therefore, the process was partisan and violates the requirement of balanced influence.

[00:09:26]We've also heard of the no integrity or transparency because forms were unverified and cannot still be verified to date. No serial numbers on those forms that were used for public participation.

[00:09:40]No methodology was disclosed and statistical anomalies such as 162.78% support in KO South was reported.

[00:09:54]Clearly we will all agree that speaks this speaks to constitutional fraud.

[00:10:02]Again my lord I reiterate if the national assembly had more than the seven days required to dispose of this notice um this motion impeachment motion then perhaps these violations would have been averted.

[00:10:28]The respondents may argue timelines alone do not invalidate a process.

[00:10:36]However, our response would be not every short timeline is unconstitutional. So we might agree but a timeline becomes unconstitutional where it makes constitutional compliance impossible.

[00:10:53]And that is the case with standing order number 64.

[00:11:00]Why do we say the timelines there are unreasonable? First, it allows no genuine civic education before participation because the public participation was conducted by national um assembly. Second, it allows no adequate dissemination of relevant information across 290 counties.

[00:11:22]Third, it allows no serious comp compilation, analysis and debate on public views and violates procedural fairness. The fact that the defense of the first petitioner was never disseminated to the public to make an informed decision, that process was unfair.

[00:11:49]My lord, allow me to compare these timelines with those of the presidential election petition.

[00:11:59]We all know and understand that a presidential election petition is filed by a person who has arguably lost a presidential election.

[00:12:16]This petition is supposed to be heard and determined within 14 days by a seven judge bench.

[00:12:26]In contrast, when removing the same president who's been confirmed perhaps in the presidential petition, the National Assembly allocates itself only seven days to remove a president or a deputy president who was validly elected using universal suffrage and the people sitting to remove the president or the deputy president are 349 members of the National Assembly against only seven judges at the Supreme Court when hearing and determining an election petition.

[00:13:14]My lords, there's a problem that removal has to be extremely fast, but confirming can have more time. Confirming a president can have more time, but the removal of such a president or deputy president must be extremely fast.

[00:13:34]My lords and my lady, I'll draw some comparatives from parliamentary systems of government uh which um my learned colleague Oil Dudley was able to bring to your attention. We did the research with him.

[00:13:53]In Nigeria the timelines are four to 5 months.

[00:14:00]four to 5 months for the entire process.

[00:14:03]In Kenya, the process is around 2 weeks to 4 weeks maximum.

[00:14:09]In South Korea, constitutional court is given up to 180 days to render its determination.

[00:14:20]In the US, my lords and my lady, we will be surprised that there are no rigid timetable. But historically, what has been happening is around 2 months or more and the reason is that the flexibility exists because of the gravity of such matters that demand deliberation.

[00:14:45]So you will find from the countries we've drawn your attention to is that they are more of an investigative process as opposed to a mob justice uh process that took place in our country at the national assembly.

[00:15:04]Why are we comparing this? This comparative material is not cited to import foreign constitutions.

[00:15:12]It is cited to eliminate a constitutional principle. Basically, Kenya is an outlier when it comes to timelines for removal of its president or its deputy president.

[00:15:28]Where removal of a turns a popular mandate, constitutional democracies, favor deliberation, investigation and participatory legitimacy, not speed, I repeat my lords, not speed.

[00:15:49]So the Kenya's National Assembly Standing Order 64 runs opposite to this democratic uh pattern.

[00:16:03]Article 124 creates standing orders as subordinate procedural instruments.

[00:16:11]Being subordinate procedural instruments, they therefore cannot dilute article 10 on participation of the people as a national value and principle of governance.

[00:16:28]They cannot dilute article 118 on public access and participation.

[00:16:39]They cannot dilute article one on sovereignity of the people.

[00:16:48]They cannot dilute article 47 on fairness in administrative actions and quasi judicial outcomes and decision.

[00:17:03]My lord, they cannot dilute art at call 50 on fair hearing and art at call two on the supremacy of the constitution.

[00:17:17]As I conclude, my lord, constitutional obligations are not optional where timelines are tight. If timelines make it impossible Then those timelines must yield, not the constitution to yield.

[00:17:51]My lords and my lady would want you to look at expediting the process as a value but participation of the pe people should be looked at as a constitutional command.

[00:18:10]When they conflict then the constitution prevails.

[00:18:18]We respectfully invite this honorable court to hold that the National Assembly Standing Order 642 and to the extent inconsistent standing order 646.

[00:18:38]Why we say so my lady and my lords is because the 2day timelines is provided in the constitution that is what has been captured under standing order 646 violate articles 10 118 1 2 and 124.

[00:19:07]If you find favor with our prayer, then standing order 64, 2 and six should then be found to be invalid for being unconstitutional.

[00:19:32]My lady and my lords, as you retire to write your judgment, we need to answer to this question. We kindly request that you address yourselves to. Can sovereign will expressed through election be reversed through a process too harried like that at the National Assembly having been given seven days for the people to meaningfully participate in it.

[00:20:07]We look forward to an respectful answer of no.

[00:20:15]And for these reasons, we respectfully urge this honorable court to declare the standing order 642 and 646 as unconstitutional, null, and void. to the extent they impose timelines whose purpose and effect is to undermine the articles that had mentioned 10, 118, 1 2 and 124 of the constitution. I so respectfully submit. Thank you. Okay.