DP nomination: Lawyers differ over court decision

Some of Kenya’s top legal minds are sharply divided in opinion regarding the turn of events following the impeachment of Deputy President Rigathi Gachagua.

The Senate on Thursday night upheld the National Assembly’s October 8 impeachment of the DP by approving five of the 11 charges levelled against him.

The ouster motion was moved by Kibwezi West MP Mwengi Mutuse.

President William Ruto on Friday morning notified the National Assembly of his decision to nominate Interior CS Kithure Kindiki as Gachagua’s replacement and the House subsequently voted to approve the nomination.

But a while later, Gachagua obtained a court order suspending Senate’s resolution to impeach him and the appointment of his replacement.

Justice Chacha Mwita certified the matter as urgent and one raising weighty constitutional issues and transmitted the file to Chief Justice Martha Koome to empanel a bench to hear the matter following a petition filed by Senior Counsel Paul Muite.

“In the meantime, due to the issues raised in the petition, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner including appointment of his replacement, until October 24, 2024,” the judge said.

“Take notice that any disobedience or non-observance of the order of the court served herewith will result in penal consequences to you and any other person(s) disobeying and not observing the same,” Justice Mwita warned.

Senior Counsel Tom Ojienda, the Kisumu senator with a distinguished law career spanning over 25 years, said the court order was inconsequential as it had been overtaken by events.

In his learned opinion, the court order came after the fact and won’t stand the legal integrity to stop Kindiki from assuming his new role as Deputy President.

“The order is overtaken by events coming after the proper nomination and appointment of Prof Kithure Kindiki,” he said on X.

However, Nelson Havi, his peer in jurisprudence, quickly disagreed with him.

“The court order must be obeyed. It is not a suggestion. That is what every truthful advocate including those of us who support President William Ruto must tell him and the people of Kenya. Do not mislead anyone, Prof,” Havi said.

He had in a previous tweet taken issue with Parliament’s hasty approval of Kindiki’s nomination as Gachagua’s replacement saying the House had created a constitutional crisis.

“A constitutional crisis of two Deputy Presidents in office; well done, Parliament,” he said.

The National Assembly approved Kindiki’s nomination shortly after President William Ruto relayed the information to the House via Speaker Moses Wetang’ula.

The speaker almost immediately gazetted the resolution.

“It is notified that, pursuant to Article 149 (1), read together with Article 122 of the Constitution of Kenya, the National Assembly has, at its sitting held on Friday, 18th October, 2024 voted in favour of the nomination of Prof Kithure Kindiki to fill the vacancy in the Office of the Deputy President of the Republic of Kenya,” Wetang’ula said.

“They throw in a court order, we reply with a gazette notice,” Senior Counsel Ahmednasir Abdullahi said.

In his opinion, Ahmednasir said what the court order addressed itself on Kindiki’s appointment but does not stop him from taking oath office since it was overtaken by events.

"Appointment" is what was stopped by Justice Chacha - and the appointment was made before the court order - not "swearing in". So tomorrow's swearing-in ceremony can go ahead...I have blessed it,” he said.

It remains to be seen which of the opinions fronted by the three lawyers stands the test of time when the yet to be constituted bench of judges of uneven number sits on October 24 to give further directions on the matter.

The development comes even as some commentators opined that the court case can drag on for long leaving the office of the DP vacant for a prolonged period.

On this observation, Havi had this to say: “Judiciary should and must benchmark with Parliament on expeditious disposal of disputes. If a complex case of this kind can be determined by Parliament within seven days, why should the court take one to five years to do so?”