Constitutional impeachment proceedings must adhere to strict procedural requirements including mandatory investigation, proper timelines, and adherence to natural justice principles. The use of 'may' versus 'shall' in constitutional provisions requires careful interpretation based on constitutional values and the substantive justice sought. Courts have supervisory jurisdiction to ensure constitutional compliance in impeachment processes, and failure to follow proper procedures can constitute constitutional fraud. The South African Constitutional Court's interpretation of similar impeachment provisions confirms that investigations are mandatory and cannot be bypassed, reinforcing that constitutional democracy requires proper procedural safeguards even in the removal of high-ranking officials.
LIVE: Rigathi Gachagua Impeachment Case Hearing | Milimani CourtAjouté :
the mass of you to come and save the soul of this constitution.
In conclusion, what history will record after this proceedings today, my lords and my lady, let me close by saying this. The impeachment of Honorable Rigathi Gachagua will be recorded in the constitutional history of this republic.
The question is, what record will what record will say? If this court allows to stand the impeachment, the record will say that in Kenya, a deputy president may be removed from office on the basis of political metaphor without any finding or of by a competent authority and without meeting constitutional threshold and due process that selectively targets political opponents while exempting those in power from equivalent treatment.
scrutiny. If this court grants the relief sought in our petition, the record will say something entirely different.
It will say that in Kenya, the constitution means what it says.
That the threshold of impeachment is real and is is and it is high. That the rule of law is not a slogan but a shield available to every Kenyan including a Masai like me, including those whose whose whose politics are inconvenient to the powerful.
We urge this court to make the right record. We pray for orders as prayed in our uh petition.
Including a declaration that the impeachment of the first petitioner was unconstitutional and an order that he be compensated as prayed. So, I submit, my lords. Thank you.
And always, my lord, whenever I speak and address this court, my learned colleague is my friend always interrupts my my my presentation.
Yes, my lord.
Yes, I have not seen him again.
So, I have no information. I think he was appearing in his personal capacity.
And also for one of the civil societies.
But the two.
Well, my lords, now that that issue arises is one of the senior lawyers I've had the privilege of calling me to tell me one or two things that have clarified some of the points we've been trying to make. He's okay.
I don't want to say much, but everything is okay.
Yes.
Now, my lords, I'm happy for the time given to my learned colleagues, Mr. Martin Kamwaro, to deal with the issues because of the time constraints that are there.
I will try to speak a little bit fast.
I'm happy I'm assuming you're being recorded.
Yes, I I should be done between 30 to 40 maximum. I should be done.
My lords, they And I'll go straight to I'll mention the specific submissions that I'm responding to.
If I don't mention any persons, it is only because I have had to edit the response to fit the timelines that have been accorded to me.
Now, first of all, I want to thank this friend of mine, Dr. Mutomi, for mentoring this young lawyer that we had in making very good submissions. I told him he reminds me of Gibson. He mentored very many people, including myself.
And I challenged uh my assistant, Sylvia Mosongo, that if ever Professor Kindiki, who is my friend, also is impeached, he should come like Muteti to speak to you.
>> [laughter] >> Be that as it may, let me come to the business of the day.
And uh I want to clarify Mr. Mukele had suggested that the specific orders of standing orders of the National Assembly and the Senate have not been challenged.
I want just to reiterate that we did so in uh prayers number 12 and 13 of the re-amended petition.
And uh the next general issue, this is a cross-cutting issue that has arisen, is the questions of may and shall in our Constitution.
I will not bother the court with the grammar, which appears differently in very many decisions from the High Court to the Supreme Court.
Because we are dealing with constitutional adjudication, the Constitution has already said how the Constitution shall be interpreted.
And that includes the word may and shall in articles 20, we start with article four, I believe.
The second is a constitutional democracy.
So you might in interpreting the meaning of any law, that's the value that you start constitutional democracy.
Values of our Kenya stated in article 10.
And then we have article 24 where they say interpreting any law or statute and intervention by parliament, they must take into account the fact that this is a free society that believes in democracy and certain value systems. That is in article 24 of the constitutions. And then there is article 259 one of the constitution. That also says how you interpret the constitution. So that bearing in mind those provisions, it is our submission that the context in which the word may and shall in article 145 must be interpreted by the constitution is by this court examining what is it that it seeks what is the issue of substantive justice, substantive law that seeks to be secured.
And my lords, I submit that the constitution itself when you read it makes it clear that when the motion and the report or is received from the national assembly Senate shall investigate the matter.
Shall investigate the matter. The question is about investigations. In our earlier submissions, we said why in under the our system of justice and the adversary justice system justice must be based on truth and investigation is how you arrive at that truth.
Therefore, if that be the case, then 145 must be read in a manner that upholds that an investigation must be conducted because that is the principle and that is the value. The issues of natural justice, they are set out in our constitutions, must be incorporated in interpreting that law. So that, my Lord, there would be some danger, obviously, that if the usage of the word may, as suggested by the respondents, was to be used to say that you cannot actually impeach an elected deputy president without investigation, as the Constitution seems to say. Such a reading is absurd, but apart from the absurdity of it, is that it is unconstitutional on the basis of the provisions of the constitutions that we have read.
But now, the only other question is a practical question, which is purely a question of common sense.
My lords, uh if you Why didn't the Constitution use the word shall?
For the simple reason that historically, because we have imported this impeachment issue, it is not every time that when the National Assembly has impeached a president, like they do it in America, that the president would actually agree to have the trial.
So, what means is that you couldn't use shall because if, for example, you're dealing with an American situation, Nixon did not go for trial. Nixon resigned.
So that it becomes now an optional issue that at the time when the matter is at Senate, it would have to be dealt with in a prudent manner. What is the prevailing situation? Just like now, when you are dealing with the prevailing situation, the lawyer for the first respondent have not said are saying though the constitution can reinstate the first petitioner to office. We are nonetheless saying we may while we may not go take that office. So that my lord, because of the possibilities of all those intervening is the reason why you use the word may.
Many statutes that I know, I do I have done some a lot of work on this university statutes. There are very many cases starting with Suba Church. I believe I even defended Asan Omar when they were trying to get him out of Moi University.
My lord, many universities would use the word may.
But the courts have over the years said the issue of whether or not you are going to hear a student or any other aggrieved person is not optional merely because you have used the word may.
May cannot take away the fact that in Kenya natural justice is mandatory.
So that to what are we saying? Unless this court can say natural justice does not apply to the impeachment of the deputy president, number one, or number two, is also prepared to say investigations were not necessary, then it is not possible to read the constitutions to say that the usage of the word may meant that it is not mandatory. If we apply our value system and the principles of our constitutions, investigations are mandatory. You cannot pass a verdict minus that investigation.
Apart from the issue of the doctrine of separation of powers that we talked about it, that parliaments or but I'll come to that question or gender made some good submissions. It's one of the issues we are picking up. You are picking up.
No, just relax.
>> [laughter] >> My lord, I start with Professor Githu. I believe he's the one who spoke first, senior counsel.
Professor Githu Muigai said that contrary to what we had submitted that the constitution makes provision for the procedure of impeachment of the deputy president.
And I wish to reiterate that it does not.
Article 105 of the constitution says the issue of impeachment of the president.
Article 150 requires that you modify the procedure in 145 in order that it can apply to the deputy president. What does this require in actual terms?
I believe I asked Silvia what does because Professor Mogai kept on talking about mutatis mutandis. So, what does this mutatis mutandis means in plain English? In plain English it means the original exist which is 145 then you need to get what is it the generic?
That's what they say. You need to get a generic. The generic in the medical world must actually exist. The generic and the original are basically the same medicine except certain ingredients. So, that that is so there must be in existence a document >> Senator. The deputy president doesn't matter. Okay, I defer to the science.
But my understanding of generic, I have a good pharmacist, is that a generic is based largely on whatever was the original drug that is supposed now is generated. Now, be that as it may, in the simpler language then, what it would mean in my understanding is that if you say you have procedure A, 145 for the president you must be able when you are impeaching the Deputy President on account of Article 150 to say in obedience to the Constitution the National Assembly and the Senate modified it this way.
Because the Constitution does not say it will be done through a legislation. It means it can only be done by standing orders. Because those are the two instruments, legal instruments that can be used by Parliament to do anything ordered by the Constitution.
Legislations or standing orders. My lord, there are no standing orders that have been waived that demonstrate that a procedure was made pursuant to Article 152 of the Constitution. If that be the case then there is non-compliance with the Constitution, what it says expressly. We needed something to be waived.
But it is obvious that they could not be able to undertake this impeachment without somehow creating some procedure. And they actually did that. And it is it was annexed to the affidavits of the [snorts] Senate one or the National Assembly. Annexed I believe number two.
What did they call it part two of an annexed bundle? Bundle number two. It's a big bundle. I couldn't find it here.
Page 1296 and 1290 No, 12 It No, it was 1277.
1277.
They What did Parliament the Senate do?
They came somebody with a program like those things we have for weddings saying Gachagua will get two hours, National Assembly will be able to get this. And And look at it my lords and you ask yourselves this cannot possibly be what modification could have meant when the constitution says we don't know who made that the program that they say this program is the one we are going to use to impeach the deputy president. So that my lord in terms in in evidential terms there is not before you a modification that has been availed by the national assembly or the senate and this explains the reason why in America Chief Justice Rehnquist hears the trial of Bill Clinton for an entire month but here because you've come up with some kind of a burial program that ordinarily takes a day. That's how you want to impeach or conduct a trial of a deputy president. My lord this would subject us to be a mockery amongst nations that are proud to be constitutional democracies. So I agree with my learned friend Professor Ogada there are certain things and the other gentleman who spoke there are certain things that are simply not permissible in a constitutional democracy and one of the most fundamental one is this one.
My lords the next issue is the issue of timelines. While you are still there Yes my How would you For example if this may be modified Yes.
Yes.
Yes.
constitutional convention may be modified that is also also the alternative that you don't want any directions that is also correct.
And there may be no need for directions.
There is no we when you look at the previous submissions sir I didn't want to touch that because I would raise a thousand objections sir.
But when you look at our our submissions sir we actually explained my lord sir because all those things I believe Mr. Martin Kamalo dealt with it. You can charge the Deputy President for all these statutory offenses. Yes, if you don't modify.
It's not an option.
Yes, the reason why it's not an option I'm saying we explained that the Deputy President is not a commander in chief.
The Deputy President does not enjoy any immunity. We explained all those reasons. So you modify so that whereas you can say if the President engages incitement and I think it does all the time.
You need to impeach him.
But if the Deputy President engages in incitement or or hatred there is a national cohesion and a penal code that you can resort to. So the modification allows you to be able to factor into the fact that ordinary criminal offenses and I believe we did a lot on that cannot be the basis for the impeachment of a Deputy President. But serious theft and corruption can be used against a sitting President for the simple reason that in the meantime he cannot be taken to court one.
And since that might threaten the state, that is why impeachment law is there. So that that is a logic and the constitutional theory behind it. So it is a must that you must modify.
Because this is not the same office.
They do not enjoy the same status. When I'll be talking about the constitutional crisis which is an important thing according to the first petitioner, you you will get that point. Yes, my Lord. So to go now to the issue of timelines.
My Lord, these timelines are important.
My Lord, my Lord, that's a novel point though.
To which we did not address ourselves.
We addressed that issue.
That was from our basic team to assemble for your name.
Yes, but my lord, the constitutional threshold differential that he's submitting then falls squarely into Article 87 that is asking for differential treatment for a deputy elected on the same ticket as the president.
My lord, I believe in Article 50 of the Constitution, if after I'm done with my submissions, the respondents believe there is anything extra they might say, I will not object. So, let us have a a flow of my submissions. I would never object.
And I didn't object when they were talking.
No, it's it's got to be like that. Yes, my lord. It's got to be like that that after you finish the time >> [clears throat] >> Okay.
I understand.
To comment.
Okay. But, my lord, he talks about differential. Uh the differential treatment, the actual modification seeks to achieve differential treatment. That is a direct answer. That one of the person is a president. He appoints everybody including the people that he appointed that are causing the impeachment of the first petitioner. He appoints cabinet secretaries that have appointed the other people that they the deputy president is was being accused of. So, that that's a differential treatment. And uh and therefore, they are not treated as the same. It is a reason for the modification.
>> modification actually is a command. It's a command, my lord. According to you. It is not according to the my interpretation of the Constitution. Yes, our submission is a command.
Yes, and we have explained the basis of it.
The legal basis of it. It is explained in detail both in our our actual pleadings, and in our main submissions that we submitted. Yes, my lord. Now, to to proceed on that other issue, the issue of timelines, see, is a cross-cutting issue, so I don't need to mention any specific person, but the issue of timelines as and I like to follow 258. Why does the Constitution of Kenya, and even in articles of impeachment you will see, sometimes how do we do the court discipline court deals with the elections of the president, they give timelines.
Elections petition, they give timelines.
Impeachment, in some instances, they have given timelines. Some instances, they have not.
What is the reason for it? Part of the reasons are historical. I will not go into that. Part of the reasons are technical and in order to achieve certain other values of the Constitution. So that, my lord, when you look, for example, at uh how Parliament is going to do its job, Parliament was given latitude through standing orders to ensure and there is a provision where they say hearing is part of the conduct of Parliament, natural justice, to ensure that you come with your own timelines in order that in accordance with the Constitution, you can impeach.
In the Senate, which is where now the elaborate position is given, the Senate they gave the 10 days for the for the for the committee to carry out the investigations.
But, my lord, you will notice that the trial after the Senate receives the committee or of the Senate of the Senate's committee, there is no timelines that is given. Why is that the case?
It is the case, my Lord, because you cannot be able to prescribe how a hearing will take place.
People get sick like it was in this particular instance. You cannot be able to tell all that. If it is a you as the Chief Justice is supposed to preside, the Chief Justice may not be able to be available and he might even himself become sick. I even hear that for good reasons we have failed to proceed in the matters in the past. So that, my Lord, the whole argument why there is actually no timelines is because you are sitting as a court, albeit a political court. And a court has a duty, pursuant to the adversary system, to ensure the people you want to impeach, you have actually given them the latitude that is required and to decide how they are going to defend themselves. But you cannot have a situation whereby, with a one piece of paper that looks like a funeral program, you are still in the Deputy President that defend yourself in two hours. You are telling Parliament, "adduce your evidence in this." My Lord, that is not the way it's supposed to be. So that, my Lord, the point I am making is that in this particular instance, when Senate decides to impose timelines through that program, which is not in accordance with the Constitution that has prescribed timelines, that is outside the Constitution. And that is why the first petitioner is entitled and his supporters that I represent to say, "Fair trial was not possible. Fair trial for 11 charges before some of them were dropped, is not possible in two hours.
Even chicken thieves, you nobody has ever their trial over chicken this in 2 hours. So that that's a major consideration. And that's why I'm saying that the question why timelines are there or not there. Because in this case, they were not there. My lord, we go to the issue of the appointment of the deputy. President has 10 days. He decides he has 2 hours. In fact, the process starts before the impeachment vote has taken place. Why do you have the 10 days?
You have the 10 days because in a democracy you give people that they have floated these names.
You give people an opportunity to be able to say, is this a good person? Is he ineffective? All these kind of things. You have 10 days.
When you reduce it into hours it means that the impeachment and the replacement is one transaction.
The timelines provided by the constitution says if they are actually one, the president has 10 days to carry out transaction one.
Then after that 10 days, you have 60 days to process the issue of the person who will assume this important office.
So that my lord, you will now see where what we are dealing with. This parliament, 13th parliament, which I said is a scandal like the sixth parliament of the 1980s.
This parliament where there are timelines prescribed by the constitution they do they disregard them and do their own things to the prejudice of the Kenyan people.
Where there are no timelines, they impose timelines.
So that my lord, when there is a complaint that within the understanding of our constitutional democracy, fair trial could not be possible, it is because there are good reasons good reasons that you can read them by a correct reading of our constitution. I I want to say anything much about timelines.
My lord, and therefore there is a general issue also of uh the constitution of of of judicial power, the nature of judicial power.
There was this argument that it is made in almost all political cases that uh I am aware of.
That the judiciary should be careful not because it is not elected by anybody.
And it should let those people who have been elected to do their job. It is within their discretions, all these kind of things.
My lord, uh I don't want to say much, but I just want to say two things.
Article two Is it true, yeah?
Not true.
The article that talks about Article five, is it?
Yes, it's actually article two, which refers to article 10. It's two.
My lords, article two of the constitution says how public or state power is to be exercised in Kenya.
It talks about go to article 10 of the constitution.
That is number one. So that it is legitimate, and it says everybody is under the constitution apart from those national values.
So that it is mandatory that everybody must act in accordance with the constitution. Then number two, the constitution says that the courts are the guardians of the constitution.
What the law means and whether any act is in compliance with the constitution, it is a decision of the judiciary.
And last time I had said not the entire judiciary but specifically the high court under article 165 to decide whether that issue, whether anything done in accordance with the Constitution, is indeed the case. It is in that sense that the High Court is a guardian of the Constitution. Because as I've said, everybody else confirms whether High Court did its job as a guardian of the Constitution. So then, my lord, in making whatever decisions you will be making, the the only way the Constitution of Kenya would be our supreme law and protect everybody, however mighty or low, it is by ensuring that the supremacy is upheld and the Constitution remains supreme law. So that this argument of you are not elected, you are not done, everybody else in your works under the Constitution, but the same Constitution says it has appointed the human hand, namely the judiciary, that confirms whether everybody else has acted in accordance with the Constitution.
They can take that away in a referendum.
Where they can also go and say like they said in 1982, to say Kenya is a single-party state. Until So long as there is a provision of the Constitution Article 4, saying Kenya is a constitutional democracy, they are bound. Judiciary has the final word on this issue.
My lords, uh they I I go to the next issue.
Then the next issue is uh I believe I've dealt with the role of the Senate. It was a cross-cutting issue.
And the important thing that I think I just needed to say about that would be three things that are cross-cutting.
Number one, the role of uh the Senate, it first of all comes from Article 96 of the Constitution. And it is to check when they carry out impeachment trial, it is to check abuse of executive power. That is actually the main thing, abuse of executive power or any other power that may be arise. So that my lord, in checking now that power of the Senate, necessarily must the Senate must be take into consideration whether the charges that are before it manifest abuse of executive power because that's the main responsibility.
So that my lord, when you have an official because the deputy president in our under our constitutions may be a very important person.
Except to one thing.
The deputy president does not exercise any executive power granted directly to him by the constitution or any statute.
It is important to bear that in mind.
Because if you don't get that in mind, you might lose a lot.
My lord, the second issue is that uh I have talked about the mandate of Parliament where we are saying Senate was not told that you have discretions to impose your own timelines. And of course, we are talking about the issue of the Senate. And I believe my learned colleague uh Ojienda, honorable Ojienda, this is where we come in senior counsel.
My lord, I agree with uh what uh Professor Ojienda said.
That when the Senate and uh is performing its function under Article 145, the Senate is really a a a jury. It's a jury system.
You are the the function even with this calendar that they gave, this little program they gave. It's actually said National Assembly.
Yes, whatever it is.
There is like a program. Everybody can see it.
My lord, it's a one-page program.
My lord, that one actually said the National Assembly would prosecute their case and the defense would have their beat.
So that for purposes of a regular criminal trial we know that it was supposed to be there's a prosecutor, there's going to be some defense, and the Senate were to vote. Ojienda, professor, said we was What did you say? 67? We were 67 judges.
We were 67 jurors. That's actually the case. Because that is the way it is envisaged to be.
But now, the moment that concession is made that you listens to argument, the way the judges are doing you will have your issue in your judgment. You will deliver the verdict. So it cannot be the duty of a judge like it is like to say we it will advance any position.
You hear the positions that are being presented, then you make a verdict. It is the same case that was supposed to happen at the Senate. And as Professor Ojienda said, they are jurors.
So that my lord, I am saying that in order to point out a contradiction.
When now in the other submissions they are saying that they could become they could discharge the role that the constitution says belongs to to the special committee investigation and you decide whether the any charges have been The word they use is substantiated.
The jurors cannot play such a role. They pass the verdict. And that is what points out as that contradiction. That you cannot on one hand say we were passing the verdict, we were jurors, but on the other hand we were the investigators. The disease Gibson Kamau Kuria told me to come and say that the disease of colonial Kenya used to exercise powers of prosecution, investigation, and all these.
But that's why we made the independent constitution and now the 2010 constitution.
In all those constitutions, my lords, and we have the judgment of Judge Mrema in the Kinoti case, you cannot have a fusion of those powers and to be exercised by the person passing the verdict.
So that it is necessary to understand that there's a good constitutional reason why they are they they the argument that they were making is completely defective and can easily uh spoil the good reputation of the Kenyan judiciary if they were to miss such a basic point. And that is why it is important, as I said, that that is to be understood. There's a history behind it.
We also do it in colonial Kenya. It cannot be introduced by the Senate of the 13th Parliament, bad as it might be in my view. It cannot reintroduce colonialism in Kenya.
My lords, we go to the next issue. My learned colleague, Mr. Mushemi, I only raised one issue.
He said many things, but there's no time.
But one issue that he said is that uh when Mutua says Mutua says does not belong Honorable Mutua says does not belong to UDA.
He belongs to that party of capture.
That he said like by the time when we were doing this, it was obvious to the entire country that the Deputy President had lost the confidence of his own party, UDA.
But that is significant because the case I was told to come and advance here is that this was a political conspiracy, a political witch hunt.
So that in a genuine matter where you are acting in good conscious, violations of the constitutions, it cannot be preceded by saying that politically that was the understanding. This man must be removed. Because impeachment came to replace a vote of no confidence.
Confidence is purely political. You actually don't need to give any reason.
You can even say Kalonzo takes a lot of time to comb his hair. And we don't want this and you get him out of office.
Well, that is enough in a in a parliamentary democracy. But if Kalonzo combs his hair too many times, he cannot be impeached.
And I believe that's the law of Kenya to distinguish between the two. Here and now you had the lawyer for Honorable Mutuse saying that he had lost the confidence of UDA.
It confirms the basis of the case that we are propounding.
We go to the next issue, Mr. Kamotho.
It's called Adrian Kamotho. I don't know whether he's there today.
My lord, you will remember Adrian Kamotho when we started these proceedings, he was appearing for both UDA and the sixth respondent, His Excellency the President of Kenya.
At some stage, he exited and said I will only appear for UDA.
The consequence is all those things that we have said about the political conspiracy have not been answered. Going by the decision of the Supreme Court saying in other cases if you are the AG, Kalonzo should answer for the president.
I didn't hear the AG answering for the president when we say this charge number one of tribal appointments and regional balance. These are things that were done by the president under the law and the people that he has appointed. That is not controverted.
So that contrary to the Senate, the Senate could proceed to indict and impeach somebody and remove them from office without any evidence. It is our submission that before the High Court of Kenya where somebody says it is not me, they must give evidence to contradict that and show if certain communities have a bigger number in public appointments than others, who is responsible for that?
That is not a question that can be avoided by the High Court. It was avoided at the Senate, but the Senate is political and you can you can excuse many of them for very many things under the sun.
Now, there is the issue of the South Before Yes, I let me deal with the South African judgment. My lord, I had given you the court clerks the submissions that we did. I don't know whether they still keep. I'd even given them this. I gave you this and this to make it easy. We produced the judgment in a bound form like this and we had also given some submissions because we were suspecting that we may not have sufficient time to deal with it. But, my lord, I need just to do take 5 minutes. We have supplementary submissions. Everybody was served with them.
They are dated They are dated 12th of May, 2026.
Where I only want to say three things, but before I say those three things, let me say this that >> [snorts] >> when we made our constitution, the South African constitution was in existence and we borrowed quite a lot from South African constitution.
But, when my lords the my lady the the South African constitution, when you it, the substantive provisions on impeachment, they are more or less like the American constitution.
There is no, unlike Article 145, they do not have an equivalent where they set out a a procedure on how to go about it.
There are a number of cases we are being told, uh, case number one, two, and three about how that subject has troubled South Africans, how to deal with the issue.
The long and short of it is that on account of the intervention of the Constitutional Court of South Africa, the South African Parliament made, uh, rules that by and large mimics Article 145 of our constitution to govern the impeachment of the president. That's a broad issue.
Now, in interpreting that particular issue in the decision that is before the court, what the South African court said is that where there was provision that investigation were to be conducted upon a committee, a some probe committee, finding that, uh, it was President the current President Ramaphosa because he was even being told to resign on account of that decision.
They said that, the impeachment committee is a mandatory provisions.
The judgment explains that issue at length.
Because it is the uh, because what the South African committee, when they voted not to have the committee, the South African court was saying, "Parliament does not have power to shield the president from unnecessary constitutional investigation in order that a vote may be carried out. So, that they purported to give themselves a discretion that the South African court said, "You do not have such discretion. Your work is on merit.
You must decide and after all procedures have been undertaken, you must decide whether the president committed the offense or not."
That in plain English, the the issues are can be stated in a more difficult way uh for non-lawyers, but that's the main issue that was there.
So, for purposes of the highlight that we want to make is that in the same way if the South African text courtesy of the South African Constitutional Court has uh shepherded the making of rules that mimics our constitution it is this rare moment >> my lord, and my lady, I think we have to object because counsel has a duty of candor.
And since we won't have a right [snorts] to address you further he cannot tell you things that are not accurate. He's telling the South African Parliament has made rules that are similar to our Article [clears throat] 145. That's not factual.
That's misleading.
Number two, even on the judgment he's referring that judgment is just about one rule out of about eight to 10 rules.
That judgment does not tell us what those other rules are so that the conclusion can be made they're similar to our Article 145. They are not reproduced anywhere in that judgment. He has not himself reproduced them so that he can lay a basis for telling you that they mimic our article 145.
The undeniable fact is they are as different from our article 145 as planet Jupiter is different from Earth. Thank you, my lord.
Well, the direct answer to that is this.
When after this South African judgment was delivered, we proactively did these submissions.
And what we are highlighting, we are highlighting these submissions. I remember the court directing everybody else has a right to do additional submissions on the South African judgment. But even before writing, they actually talked a lot about the understanding Was it Mr. My friend, Mr. Kipkogei? It is Mr. Kipkogei. He said what he understands the judgment to be. So that, my lord, as it is the court to decide whether I'm wrong or I'm right. And these submissions, which is what I'm highlighting, the court can be able >> is not responding to my objection. My objection is this.
He told you not once, but three times, that the rules for impeachment in South Africa are textually similar to our article 145.
It is our case that they are not, and I'm saying since he's replying, he's an officer of this court, he's an advocate. He cannot make claims that he knows or ought to know are factually inaccurate and then proceed, especially when we won't have an opportunity to respond to it.
I think we have found a way of dealing with those kinds of claims because we have noted that parties only highlight uh sections of rulings or judgments which support their case. And when you go back to the text, you'll find that uh there could an element. What he's trying to do is give the court. So, I think everybody is entitled to interpret a decision as they want. It's a point we can determine the way to give that interpretation.
Thank you, my lord.
And I don't mind to be told I'm wrong on that. I was about to say I should be allowed to do an affidavit to provide the rules, but this is not necessary.
So, that my lord, and now I'm forgetting even a few things. I don't know whether that was intentional.
>> [laughter] >> My lord, the point I was saying about now my understanding. The South African, they imported something from Kenya under those rules. Because the special, their constitution does not talk about this special committee. This special committee actually exists from some rules that exist in South Africa.
Now, because of that, and they say those investigations are mandatory to be carried out. And there is no discretion for parliament. That is the most important issue.
So, that my lord, in the same way, and that is the relevance of this particular decision. That in the same way that times without numbers we have have decisions of the Kenyan judiciary talking about how their South African constitution have had good provisions, like in public participations, and how they have been interpreted. It's also a good moment for Kenya to through the judgement of this court for the Kenyan high court also to let our constitution shine. And draw out to the entire world of democracies that in Kenya, when the makers of our constitution were doing the job for avoidance of doubt, there was a clear procedure that makes this issue not optional.
So, that in short, the problems, and you've seen it's a problem that has taken like 10 to 15 years in South Africa. The problem on how to impeach the president or the deputy president.
In Kenya, it is clearly settled.
Provided that the constitution is complied with. If a constitution says 10 days by a committee, it's 10 days. So, then my lord, that's a golden moment that I have to remind the High Court that we also need now to say we've got a good constitution that does this. Point number two on that issue is this.
That you can imagine, my lord, a situation whereby the so in South Africa, after courtesy of their constitutional court, they have made rules mimicking Kenya that establishes this special committee.
And they say it is mandatory.
How would it look like if the same Kenyan judiciary, we thought on the face of it looks like a good constitutional provision, read that constitution to remove discretion?
Because the Kenyan constitution, properly read, does not give Parliament this discretion. In South Africa, Parliament, because they made the rules, they appear to give themselves discretion. So, that my lord, what I'm saying, because we read the decisions themselves and our submissions, is to ensure that the constitution is read in correct manner and in a manner because this is these kind of judgements that will be read 100 years from now, as long as this constitution exist.
This a kind of decision that must be done correctly. And to run the error, and I've pointed out why in reading Article 145.
If one were to read it as suggested by by respondents, we would scandalize the High Court, the Kenyan Judiciary and its profession.
Therefore, my lord, I'm urging you because the when the South African case was delivered, it was a day after.
We have said we had interpreted Article 145 in the manner that was confirmed the following day by the South African Constitutional Court. So, I urge you to read that decision and our submissions and and enable you to interpret properly 145. The second issue on that decision before I go to this constitutional crisis is this, that what is it that was moving the South African, the underlying factor?
The South African Constitutional Court, my lord, was saying that in a democracy, you run the risk of actually subverting democracy itself when a constitution says presidential misconduct, presidential illegalities, would be done by the necessary vote of Parliament after an investigation has been carried out.
So, that they say this cannot be permitted.
To permit a rule that Parliament can discharge a constitutional function in a manner that they wish would be an abrogation of democracy. It is the same reasoning, my lords, that I've been trying to persuade you to hold that an impeachment carried out contrary to the Constitution subverts everything.
The democracy itself, it subverts the issue of the the purpose that was supposed to be met. The final issue is or the first petition try telling me constitutional crisis.
Uh I have read a few books, as I said, Gibson Kamau Kuria was my employer.
We ended up he used to have very many books on this constitutional crisis.
I've read a lot in that area, but I don't want to go into all that.
What was a constitutional crisis strictly understood in simple language?
Who talked about constitutional crisis?
Mudombi.
Get serious.
>> [laughter] [clears throat] >> My lord there I have as I've said those books many as there are many articles written in that issue. Is Mr. Mudombi who said that point and he doesn't want intervention himself because he made an important point that made first petitioner to tell me Kibbe say something about that. This is what I want to say my lord.
What is a constitutional crisis?
Apart from the reading of these books that we're talking Ben Wabueze's many books as written about that.
For example, the issue of coup d'état, the excessive ones.
Those are the ones that generate a constitutional crisis in a country because the country ends up being governed by people who have taken over and with no mandate of the people. And where you cause civil war, you cause instability and what when that instability is traceable to the failure of the constitution, then you say you have a circumstances whereby you have a constitutional crisis.
Now, our constitution anticipated the possibility that there might be a disconnect between politics and the constitution and how the system of government that you put. It is why in article three they say that I believe it's three two that any attempt to establish government other than in accordance with the Constitution is unlawful.
That provisions may not be read in that manner in any other manner.
It was put in order to avoid the mischief. Here is this.
An attempt to establish government other than in accordance with the Constitution end up generating a constitutional issue, a constitutional crisis, and a political disorder.
And the immediate context again is simple because it is this.
That we say we establish government to run Kenya for 5 years on the basis of a mandate for 5 years granted in the previous election.
That government has been The purpose of election is to decide which party and which individuals are going to run government. Those who did not whose parties did not win and whatever, the Constitution in the current Constitution says you will be a minority for purposes of running government. And the mandate to run government is a collective mandate granted in an election by the people who together like if it's a presidency, president and deputy, who went to seek for the vote of the people based on this or the other true stories or falsehoods, but they get elected.
Now, that having been achieved, it cannot be possible by any single individual or in conspiracy with anybody else midstream to change the composition of government. When you change the composition of government, apart from the fact that you violate Article 3 of the Constitution, you also generate a constitutional crisis. What How do you does it manifest itself even in ordinary social media accounts? Even in ordinary political speech and newspaper reports. You generate it because like today Kenyans keep saying that whatever government says happens in Kenya.
And because there is no longer the divide has been blurred.
There's no government the people to govern government and people to hold it responsible. And who suffers? It is the people. Because the institutional mechanism to ensure government is politically held responsible is not there.
We used to have PAC, the parliamentary committee of PAC and BIC that the law specifically says these should be held by people who are not in the govern in the parties that are running government.
Because of the series of events that have happened in Kenya courtesy of the BPG that is no longer the case. Govern the government and the same people running these committees, the same people running the minority are in government.
It is a scenario my lord what was the cause of all these? The immediate cause of all these was the impeachment of the first petitioner.
So that it is important to say that if you are suffering a a political problem in Kenya where government becomes unaccountable and abuse of executive power is the cause is the is is a thing is the nature of every is the order of the day. This is traceable to the fact that government in accordance with the constitution was suspended with the impeachment of the first petitioner.
That's the important point that needs to be understood. That you cannot talk about a constitutional crisis like something up in the sky.
You must reduce it to the elements, what it means, and how it manifests itself in any specific country. We are dealing with Kenya at the moment. I will not go to those other issues. But the two and third point now on this constitutional crisis is this. You are told by my learned colleague Dr. Mutomi that there is this issue that how can parliament be faulted for impeaching a deputy president who was talking about issues to do with uh shareholding and these kind of things.
Now, the direct issue as we have said is that when you look at the arguments we've made and we are just reiterating is that he was not accused because he does not have those powers of any abuse of discharge of executive function. That you did this, and because you are responsible that one or two or three Kenyan communities are overrepresented in the governance of the country, that there is something wrong.
He was accused because it is important.
He was accused. You only talk about either the Kikuyu sometimes or sometimes Gama. And that polarizes everybody else.
Karuti Kanyinga's, we use the book, and we have cited the actual statistics in the affidavit that clearly demonstrated, my lords, that if one and a court of law must care about facts, if one cared about facts in the current situations since 2022 of public appointments and all these kind of things. The two communities that are actually overrepresented significantly above their population quota are actually the Kalenjin and the Somali. That is what the affidavit says.
But more importantly, my lord it is stated in our affidavit and you have not challenged it.
Where is it for the judge to decide?
There is an affidavit that is uncontroverted.
But more importantly, my lord My learned friend, Mr. Kamwaro, I didn't even know about that. But he was saying he was telling me, "You know, Kibera, when I read those statistics what I actually saw is that the Maasai and the Somali are more or less the same number in terms of population.
But there are no Maasais.
>> [laughter] >> MAASAIS ARE VERY FEW. SO, THOSE are realities, my lord, that anybody who wants to talk about this difficult subject must actually confront with.
In fact, he went on and said, "I look at the Mijikenda. They seem to be more than Somali." But there are also very few Mijikenda. So, that, my lord, this issue that I said I talked about being trivialized this is an actual problem that exists in Kenya.
But it cheapens everything. When you say that the first petition is responsible for it because now that for about 2 years he's out why has it not been rectified? Just the other day the Public Service Commission confirmed what we say in our affidavit.
These are government documents. Nothing to do with us. The final point on that issue that uh Yes, and they have just this one point.
What's my point?
That final point, my lord, chief justice, you notice that is that the for purposes of this constitutional crisis, I have talked about the attempts by I have talked about the attempt by in 2013 to ensure President William Ruto and Uhuru Kenyatta did not contest the presidency. We talked about that case what a five-judge bench of the High Court decided.
The bench basically said we know impeachment that is that is the the political balance going on. You are impeached, you cannot have presidential ambitions. Presidential ambitions are not it is not a man who decided I want to be president. It's a community or a number of political organized people who said we want you to be our leader.
So then my lord and that was the basis for which they say article 38 does not just concern the right of an individual to seek political office.
It is also protects the political right of his supporters to be able to ensure that you participate in elections.
My lord, constitutional crisis, we had it in Nigeria. I have 1 minute so I don't want to take your time. Where they wanted to stop their deputy president from somehow succeeding interfere with political succession.
Actually, interference with political succession is one of the major reasons when you read many of the books why they generate political crisis.
My lord, anybody who lives in Kenya knows that since the impeachment of this deputy and elected deputy president Kenya cannot be described as a very very stable place.
The politics are in a serious state of confusion every day. My lord, I am finishing.
He talked about constitutional crisis, not me. Let me finish. You will say that in a political speech if you can permit.
My lord, this is what I mean. I'm just responding. What I mean is to introduce the issue of political constitutional crisis, not me. I'm just trying to say political crisis results into political instability.
By the ultimate political instability that can occur in a country is to on account of a politically motivated impeachment to get yourself in such a scenario that you say the leader of an important political constituency comprising probably of the Kenyan population is going to be excluded by a defective impeachment from realizing the political aspiration.
It is called in the normal electoral language, disenfranchisement.
Disenfranchisement of a political community or a political party like we had today with DNA in 2013. My lord, I urge you that when you consider all that he takes on the issue of what is and what is not a political crisis.
The impeachment There there can be no judgment of this court that would cause a constitutional crisis.
If the judgment voids the impeachment that took place only a simple thing would happen. We go to the status quo ante.
At that particular time, I believe it's politically untenable as it seems to be saying for the first petitioner to say I want to remain a deputy president. But what it means in practical terms because it is important that this is said by a constitutional lawyer.
It simply means the problem the issue that was aborted about the proper appointment the 10 days period and the 60 days period would have to be repeated so that legitimately and unlawfully we can get a deputy president under our constitution. That is assuming if the first petitioners this petition succeed still commits that he doesn't want the job. This court cannot cause a constitutional crisis by upholding the constitutions of Kenya. My lord, I thank you for the time that you have given the clients I represent and the many Kenyans of goodwill who have called me with all kinds of suggestions to make these submissions. I thank you very much.
Yes, my lord.
My lord, I'll try within the circumstances.
Nothing that I represent similar clients like those of Kibe.
Uh my lord um Permit me to begin by saying that again um the court is being Or rather all the submissions that have been made before this court, my lord, they have the intention and the most especially from the petitioners to preserve our constitutional democracy.
The petitions that have been placed before you, my lords, they are all challenging the process within which the first petitioner was impeached.
I associate myself with the submissions made by my colleagues.
And I add my lord that today or when this court will be rising up to pronounce itself it may find itself in the same situation again where Fidel Castro was on the 26th of um uh July 1953 when he made his speech that history will absolve me.
Small synopsis is that he had just made some attempts to overthrow Batista.
And he was acting towards the revolution of the people. And the statement that was made was to encourage the people that the revolution shall not be lost by his trial.
We hope that the constitution of this country and the people's power confirmed by article one shall be preserved by the judgement of this court.
My lord, permit me to begin by reacting to the submissions by my learned friend Mr. Dr. Giongo.
Where he invites you my lord to look at the um alleged election of the current deputy president as a constitutional process, Mr. Kindiki.
My lord submissions were made and most importantly again by Mr. Noor for the IBC that the whole process was in conformity with the constitution.
There is nothing that can be further from the truth my lord.
Mr. Kindiki's process was fraud unconstitutional unlawful and the same is completely a stranger to our constitution.
You are told that it was not mandatory for us to have the commission in office for the commission to oversee the process of this election.
My lord, article 140 nine has two very key overriding terminologies. One is that Mr. William Mr. William Ruto was to nominate.
That is the president shall nominate a person to fill the vacancy. Number two, the National Assembly shall vote.
Two very key words, nominate and vote.
This cannot be said to be anything that Parliament was being invited to approve.
Parliament was being invited to exercise the people's power under Article 1 of the Constitution through the delegated democracy process.
Of course, advisors of this constitution, my lord, were alive to the fact that it will not be possible for us to go and replace the deputy president through the universal suffrage. That is why they delegated this function to Parliament. So, anything that any process that is initiated or commenced by Parliament and by the president in the attempt to replace this office, this vacancy, must resemble the process in which that person who was removed came into that particular office.
That is to say, your lordship, if you are to look at Article 148, it is says that each candidate in a presidential election shall nominate a person who is qualified for nomination for election as a president, as a candidate for the deputy president. Again, the candidate for the president is being granted the mandate to nominate.
Then you are told that At at at um Article 148, clause three, the independent electoral body commission shall shall declare the candidate nominated by the president who is elected as president. So, we can see the involvement of the IBC during the excess the direct exercise of the universal suffrage in the exercise of coming up with the of the nominee of the deputy president. It it cannot be therefore said that when we are placing that particular person who came into office through the universal suffrage and through the process of nomination that he ought not to meet the qualifications under article 137 of the constitution.
And who is mandated to make sure that the provisions of article 137, the qualification that disqualification are met if it is not the IBC.
There is no process there is no provision in this constitution that mandates the secretariat to execute the functions of the commission.
The functions of the commissions are strictly confined to be executed by the commission. The argument therefore that when Mr. William Ruto wrote the IBC, he was only seeking for information, we must then ask ourselves what was the purpose of that information if the purpose was not meant to replace an office to to replace a vacancy.
He was not acting under article 35 of the constitution where you are simply saying I want this information to confirm whether Mr. Kindiki was a registered voter.
He was asking for that information for purposes of replacement. And therefore you my lords, this replacement must meet the the test under article 137 of the Constitution.
The functions or the qualifications under Article 137 can only be met by a fully and well duly constituted commission.
To the extent therefore that this process was initiated in the absence of the commission and when the commission was not duly constituted, this process was a constitutional fraud.
There was no one to decide whether or not Mr. Kindiki had met the qualifications designed under Article 137 of the Constitution.
And if you want to know that the commission must be involved in this process, look at its functions, the function the commission is playing under Article 148.
Your Lordship, I got the next point that my Lord you need to visit and look at the IBC Act and most importantly, I'll just mention them. You look at Section 5 of the IBC Act which defines the commission.
Look at Section 4 again of the IBC Act which defines the functions of that commission.
Again, Section 10 subsection 6 of the IBC Act which creates the secretariat and it provides that the secretariat shall perform its duties and shall be responsible and answerable to the commission.
So even this particular time when they are deciding whether or not Mr. Kindiki is qualified, the secretariat is answerable to the commission and the commission the the the the the the the the the the the the the the the the the the secretariat is responsible is the is is answerable to the commission and the commission is responsible.
Number two, your lordship, section 10 subsection 7 paragraph E Roman 1.
Again, provides that the secretariat shall execute their functions or shall execute the decision of the commission.
It's the secretariat is ideally a conveyor belt of the decision of the commission.
So, where was the commission at this particular time and whose decision when the Marjan Marjan in the conspiracy wrote to parliament to confirm the qualification of Mr. Kindiki under article 137. Where was the commission?
Where was the commission again at night?
Mr. Marjan Marjan, he cannot replace the commission. If the people of Kenya by parliament wanted Marjan Marjan to execute these functions, they would have expressly said so.
My lord, if you are therefore to confirm that process as a process that conforms to the constitution and the statute, we shall get to where my learned friend senior Kibe was submitting, the constitutional crisis.
You shall have affirmed and a person to hold office fraudulently.
That person, to the extent that he was nominated and purportedly voted by parliament in contravention of the constitution, your lordship.
It therefore invites you to look at the import of article 3.
Nobody shall be allowed to form government as if May I read it for purposes of clarity?
Any attempt to establish a government otherwise than in a compliance with this constitution is unlawful.
So, even where we are, you my lords, to the extent that our submissions confirms that Mr. Kindiki was unlawfully put in office, we are already in that particular constitutional crisis.
Our government has been formed unlawfully. And the only person who can rescue us from this particular process is this court.
My lord, permit me to state that constitutional offices, and most importantly, the office of the president, represent the people of Kenya.
And therefore, your lordship, if the people of Kenya are to be represented in that particular process when Parliament was voting, your lordship, that process of the voting did not derogate the peoples of Kenya's their ability confined one under Article 1, number two, Article 10, number three, Article 118.
Submissions were made that public participation was not necessary when replacing this office.
Then what were the 60 days for?
Why did we Kenyans decide that we have 60 days within which to fill this vacancy?
The purpose of these 60 days, your lordship, is to make sure that the people of Kenya are fully involved.
THE THE VACANCY THAT WAS CREATED, unlawfully created, did not belong to the president. It did not belong to Parliament. It It concerns the people of Kenya.
To the extent, therefore, your lordship, THAT PUBLIC PARTICIPATION was not initiated in this process, and noting that Article 118, clause two, provides that when Parliament initiates any other business, they shall call for public participation, Your Lordship. Then again, there was serious non-compliance with the Constitution, and the government has been constituted in in non-compliance with the Constitution, and hence the constitutional crisis.
Your Lordship, I know that the Black's Law Dictionary will bail me out on the definition of the term vote.
The term vote is not the same as approval.
Where the Constitution wanted us to the Parliament to approve, it expressly said so. This time the Constitution spoke about voting.
This voting, Your Lordship, has a meaning that that is the only way the people of Kenya can be involved in the replacement of the vacancy that has occurred.
And therefore, this vote is similar to the vote that took place on the 9th on the 9th of August, 2022, when His Excellency Rigathi Gachagua was elected.
There cannot be any other way that a replacement can be done at night.
Approvals can be done at night, and then the people of Kenya are told that Parliament has voted on their behalf.
That's a fraud.
Your Lordship, permit me to state that on the issue of the impeachment, my learned senior, the senator for Kisumu, um Professor Ojienda, submitted on the gazettement of the impeachment.
That gazette, Your Lordship, is a gazettement the gazette dated 9th of October.
If you look at the wording of that particular gazette, it says, "Pursuant to Article 145, Clause 3, Paragraph A."
That to say of the Constitution and Standing Order number 78, sub-order one.
That is to say that the Deputy President's impeachment was commenced pursuant to Article 145, clause three, paragraph A of the Constitution.
I sub- I do submit, Your Lordship, that there is though the office of the Deputy President and the President's are derivative, there is they are distinct in their functions.
And that Your Lordship, that distinction is what invited the people of Kenya to enact Article 150 of the Constitution.
So that there can be clear distinction in the manner in which these offices are managed.
Your Lordship, the removal of a Deputy President is provided for under Article 150 and not Article 145.
So this gazette notice commenced the process of removal of a Deputy President as though they were impeaching a President.
That is a fundamental constitutional error.
It's an error because, Your Lordship, the people of Kenya were not daft that they found it they deemed fit to enact Article 150.
And of course, Your Lordship, the reason why this gazettement or this impeachment was commenced under Article 145 is because they wanted to run away from the import of Article 150, clause two, which required Parliament and the Senate to modify this process.
This modification, Your Lordship, has been submitted before. I actually submitted at length on it.
But just suffice to say that this was not an a discretional question.
Neither this Parliament nor the Senate could avoid the modification requirement.
It was mandatory.
And that is why, Your Lordship, the Constitution deliberately uses the word shall.
With the necessary it says the president the provision of Article 144 and Article 145 relating to the removal of the deputy president of the president shall shall apply comma with the necessary modifications to the removal of the deputy president.
This modification This application of Article 144 and Article 145 had to suffer modification.
The person who was to modify was Parliament.
Parliament as defined under Article 93 of the Constitution.
They could not avoid and or evade that duty.
To the extent, therefore, that the commencement of the impeachment process was initiated by the Senate pursuant to the wrong article of the Constitution, Your Lordship, then this cannot be said that's an impeachment that can stand.
They were so much in a haste that anything that was supposed to go wrong went wrong.
Who should benefit with these transgressions?
Should the Senate Should the person who was in pursuit of His Excellency Rigathi Gachagua benefit?
Should it be Mr. Kindiki?
It is the people of Kenya who should benefit from the provisions of this Constitution by upholding it.
Your Lordship, you were told that His Excellency Rigathi Gachagua had filed an affidavit and responses.
And therefore, there was no necessity for him to appear and defend himself.
Suffice it to note, Your Lordship, once more, that His Excellency Rigathi Gachagua was the only witness that the defend the defense had was to mount in his defense in his case for his case.
Your Lordship, this was not a trial by way of affidavits.
It was a viva voce process.
And this viva voce, Your Lordship, again you'll find it under Standing Order 79 the 70 78.
When you go to Standing Order 78, you are 78 six, it speaks about the president says, "Where the president chooses to appear before the Senate, Let me Let me go to B.
It's that just about appearance.
So, that it says "How the president proposes to to appear before the Senate, whether in person, by advocate, or in person and by advocates."
His Excellency Rigathi Gachagua chose to appear in person and by advocates.
He was to appear in person, Your Lordship, because it was necessary for him to conform with the provisions of again of uh Order 75 78 uh 11.
That he was to he was to to appear and go through the process and the entire motion of the hearing.
If you Again, you look at against the same order number 21, it it says, "After the evidence on the part of the National Assembly has been presented, the evidence on the part of the president shall similarly be presented.
I am reading president because your lordship there was no modification of these standing orders. That is why I am reading president as it is and deliberately refusing to to to replace the term president with the deputy president because there was no modification.
So, these standing orders presuppose a situation whereby the person appearing is granted an opportunity to urge his case.
That is why your lordship order 20 75 70 79, sorry, I beg your pardon.
22 says a witness presented shall be led in evidence cross-examined and where necessary and only for purposes of clarification of issues that may have arisen from cross-examination be re-examined.
It tells you your lordship this was to be a full trial.
That is therefore your lordship TO SAY THAT ALL THE EVIDENCE that had been filed by the first petitioner were not to be adopted as evidence >> [clears throat] >> or as as as as as his full response to the to the to the trial.
It was necessary for him to be granted an opportunity to be heard.
And even your lordship when the Senate realized of this, they again they never modified this to say, "Okay, we can exempt we can we can we we can exempt his appearance."
You will not find that anywhere in the Hansards.
Against the extent therefore your lordship that this was not followed, Senate itself violated its own rules.
If this process was prevised on fraud, how can it stand?
Your lordship permit me to state that affidavits and the responses that have been filed could not have been taken to amount as a full response for his Excellency Rigathi Gachagua.
There was need for the Senate to hear him.
Why do I say so, your lordship?
Because before the Senate decides to impeach or not, there is a duty to find out whether the charges have been substantiated.
Substantiating of charges, my lordship your lord my lord my lady, I understand it to mean that all parties have brought their evidence, the Senate had the opportunity to evaluate that evidence, and then they have, on balance of probability, they'll know which side the scale tilts to.
If the Deputy President was never granted that opportunity, can those charges be said to have been substantiated?
Substantiating of these charges meant that one, Rigathi Gachagua, was to lose his his his seat.
But remember, your lordship, the process of the of losing this seat must be a constitutional process.
If your your lordship there was no substantiation of these charges, how did the Senate arrive at a voting even for those charges that they have upheld?
One-sided process, can it stand in law?
We'll be making a mockery of our constitution if you were to say that this impeachment ought to stand.
We'll be a laughing stock of of continent and those other countries that are striving to achieve the the steps that we have democratically achieved.
That is why it is important, your Lordship, to follow what my learned friend Mr. Kibe has indicated.
That you have a monumental opportunity to speak even better than the South Africans.
Because the South Africans case did not get where we are.
I would love to hear that the people in in Uganda, people in Canada, people in in Australia are quoting a judgment that was presided over by none other than but Justice Evans.
But Justice Muriema and Justice Mugambi.
>> There's no Evans on this panel. Your Lordship There's no Evans on this panel. Sorry.
Eric, sorry. I beg your pardon. Justice Eric.
Thank you, Lordship. So, my Lord Justice Eric, I would love to see your judgment be quoted all over this world.
What a good day for you.
What a good day for the country.
What even a good day perhaps for [laughter] your grand children.
What a good day, my lady. What a good day. My Lord, permit me as I sum up to refer you to just one one more issue about Mr. Mukele's submission.
Mr. Mukele's submission was that um the whole process despite the pronouncement by the Wambora's case that we are not engaged in a quasi-judicial process.
He even tried to say that when we submitted that Senate was sitting as a tribunal, that that that Senate was not sitting a tribunal.
Your Lordship, when my learned friend uh, Ojienda was submitting, he kept on referring to the Senate as a court.
So, your Lordship, the question of whether or not the Senate was sitting as a tribunal or a court or not, it was sitting as a quasi-judicial body and it was mandated to ensure that all processes that concern itself with the fair trial were observed.
And perhaps it's important to note that Mr. Mukele and my learned friend, uh, Professor Ojienda, admitted the non-existence of a statute or standing orders guiding the process of impeachment.
Coming back, your Lordship, to my final submission, whether or not this court can look into the works of the Senate, review it, and arrive at a decision, your Lordship, is my humble submission, your Lordship, that your hands are not tied.
They're not tied, your Lordship, because at 165, clause three, paragraph D, paragraph, paragraph D, Roman two, confers you with the power to interrogate whether anything said to be done has been done in accordance to this constitution.
This thing includes the admissibility of evidence.
It includes the relevance of this evidence.
You are not stopped from confirming whether the evidence act WAS APPLIED.
YOU ARE NOT STOPPED FROM interrogating whether there was relevance in the material that were brought before the Senate.
The question whether anything said to be done under the authority of the constitution or any other law is inconsistent.
If you find that the threshold of the evidence that was brought was not sufficient to impeach, then you must find it so.
Your lordship Again Article 165 clause six Again you are told that you also have the power, the supervisory jurisdiction power.
The High Court has supervisory jurisdiction over the subordinate courts and and and other uh uh sorry, over any person body or authority exercising judicial or quasi-judicial functions.
You will still have the power to supervise the Senate.
The Senate's functions falls under your supervisory jurisdiction pursuant to this provision.
When you're interrogating this, your lordship you ARE NOT EVEN BOUND TO CONFIRM whether or not what the members of the Senate contributed spoke to the motion.
You are not barred from interrogating whether there was nexus between what they submitted in their effort to find that the motion was substantiated or not.
Relevance admissibility Your lordship Finally, permit me just to draw your attentions to the to the said South African um judgment.
I'll refer you to para I'll just quote the paragraphs and the page. Paragraph 38 of the said judgment at page 20 Paragraph 63 at page 30 Again, this is quite interesting.
When you want to interrogate where this investigation was supposed to take place.
Was it to take place at the plenary?
And if the Senate opted for the plenary. Did they investigate?
What is the nature of this investigation that the Senate was supposed to initiate?
Who was to investigate?
Again, your Lordship, look at paragraph 64, at paragraph 31.
It is says, "The failure by the National Assembly to make rules regulating the removal of the president in terms of section 89 of the South African Constitution violate constitute a violation of this section and its validity."
The failure to make rules under article 150 of the Constitution, the failure to modify violates that constitutional provision.
Again, article Sorry, paragraph 68 of the said decision, it speaks about modification at page that 32.
Again, paragraph 73 at page 34, it does speak about the need to substantiate the motion.
Again, your Lordship, look at paragraph 150 115 [clears throat] at page 140 Sorry, page 49.
Look at paragraph 116 and 117 at page 50.
The question of the status quo.
What my learned friend was submitting to. That is to say, if the petition succeeds, we revert back to the status quo ante.
And reverting to that particular position, no constitutional crisis will will be occasioned because we'll be reverting to a situation that is consistent and known by law.
It is them who believes that they are lawfully in office who may want to urge that particular provision argument of constitutional crisis.
There will be no constitutional crisis by saying that Kidiki is unlawfully in office. No constitutional crisis.
But they state to believe so.
Uh your lordship, paragraph 134 at page 57, that speaks about public participation, your lordship.
Again, look at paragraph uh 146, 148, 147, and 148.
And finally, your lordship, I tried to highlight what I find relevant.
Look at paragraph 155 of the constitution uh of the of the said judgment.
And my lord, it deals again with the issue of uh the failure to modify the rules.
Your lordship, I want to urge you to find that there was no impeachment at all, and that whatever happened at the Senate was a mockery of justice, a mock a travesty to the constitution, a violation, and it is amount to serious contempt on the part of the people of Kenya.
Your lordship, speak as if you'll never speak any other time.
Your lordship, speak for the people to hear.
Speak for the people of Kenya.
Your lordship, the fate of this constitution squarely rests on your hands.
The fate of our democracy squarely rests on your hands.
The fate of the people's power, the sovereignty of the people, and the ability of the people to govern themselves and decide the government that they want to be governed and the mode of governance rests on your hands.
The baby is with you, your Lordship.
You may choose to kill it or give life to it.
You may choose to pour the water with the baby or take care of this baby. This baby is only 15 years old, your Lordship. The constitution is only 15 years. Let it be preserved by your power.
Much obliged.
Good afternoon, your Lordships and my lady.
Morara Omoke, counsel for the 43rd petitioner.
Uh the first thing uh the first thing is that your Lordship, you asked a question during the
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