The Rigathi Gachagua impeachment case, currently before the High Court, is on the verge of creating a judicial precedent, and hopefully, an expansion of jurisprudence.
Kenyans and the world are watching with bated breath how the Judiciary is going to navigate this delicate matter that threatens to definitively impact the operationalization of the doctrine of separation of powers among the Executive, Legislature and Judiciary in Kenya.
The first modern formulation of the doctrine of separation of powers was that of the French political philosopher, Montesquieu, in his seminal work, L'esprit Des Lois (The Spirit of Laws), published in 1748.
It has been argued that such separation limits the possibility of arbitrary excesses by the government since the sanction of all three branches is required for the making, executing and administering of laws.
Framers of the Constitution of Kenya 2010 must have had Montesquieu's arguments in mind when they re-emphasized the separation of power among the three separate and independent arms of government as a mechanism for protecting citizens' liberties.
The envisaged independence in the workings of the arms of government now appears to be on trial in the Rigathi Gachagua impeachment case as the Judiciary has issued conservatory orders.
These orders essentially threaten to reverse the decision of the Senate to confirm Gachagua's impeachment as initiated and passed by the National Assembly.
The fact that the impeachment motions in both houses of Parliament were passed by an overwhelming majority is a manifestation of the determination of the Legislature to enforce Executive accountability on behalf of the people of Kenya.
In discharging its constitutional mandate, the Senate deliberated on all eleven grounds of impeachment against Gachagua that were recommended by the National Assembly and upheld five of them.
In performing this constitutional mandate, the Senate impeached the Deputy President, thus paving the way for the President to nominate another person to be appointed to fill that position according to the relevant constitutional provisions.
The President went ahead and nominated the Cabinet Secretary for Interior, Kithure Kindiki, for consideration as the next Deputy President, a move that has met bottlenecks placed by the Judiciary.
The fact that the Judiciary has issued conservatory orders that have effectively barred the Senate's decision from being implemented immediately, has left legal scholars and practitioners thinking as to whether the Judiciary is not overreaching its constitutional boundaries.
The people of Kenya have a Social Contract with their leaders.
The Social Contract, which spells out the rights and obligations of leaders and citizens, is enforced by the people through their elected representatives.
The electorate gives legitimacy to legislators to monitor, ratify and sanction executive decisions for the sole purposes of protecting the liberties of citizens, and enhancing their welfare.
The work of Parliament is not complete until its decisions are implemented.
So, if the Judiciary impedes the implementation of legislative decisions, it might be interpreted as an assault on the work of Parliament for the simple reason that that work does not amount to anything until it is implemented.
In such circumstances, Parliament is reduced to no more than a house of palaver.
By blocking the Senate's resolution from taking effect, the Judiciary is not only purporting to play an oversight role over Parliament but also undermines the Executive's authority to create and maintain the unity of purpose and command that is required for a well-functioning and responsive government.
The effect is poor service delivery to the citizens.
It was Rarieda Member of Parliament, Otiende Amolo, SC, who pleaded with his colleagues in the National Assembly to recognize an impeachment of the Deputy President as provided for under Articles 145 and 150 of the Constitution of Kenya is a political process.
It is instructive that Hon Otiende Amolo was one of the architects of the Constitution of Kenya 2010.
According to the legislator, an impeachment process is aimed at addressing legitimacy issues and functionality of the state and government.
Therefore, the process cannot adhere to the strict provisions of the law as applied in legal cases.
Perhaps that is where the problem lies.
What the Judiciary is trying to do is akin to applying rugby rules in a game of football.
It simply cannot work. Not everything that is legal is necessarily legitimate.
The people of Kenya have spoken directly in public participation forums, and through their representatives that they no longer have confidence in Rigathi Gachagua as their Deputy President.
In the circumstances, if the Judiciary tries to negate the decision of the people of Kenya, their action amounts to legal terrorism, that is, a decision that lacks minimum ethical consent of the citizens.
When judicial decisions lack legitimacy, the citizens are not obligated to respect and obey them.
Such decisions that are considered by citizens as illegitimate, can only end up excavating the tension that is already evident in the country, and ultimately lead the country into a state of anarchy.
The Judiciary's orders have effectively put into question the authority of Parliament to discharge its constitutional mandate besides creating a gap in the Executive.
A gap in the office of the Deputy President creates a precarious situation for the country in the event of the President's absence from office.
As it is now, the President is constrained in pursuing Kenya's external interests and protocols that require the personal presence of the Head of State.
Equally, the judicial intervention impedes the fight against the social vices, including corruption and ethnic balkanization that Gachagua has been accused of.
Should this impeachment be scuttled, then scrupulous individuals might be emboldened to commit similar crimes in future, with the confidence that the Judiciary will have their back.
That sort of interference will certainly not engender the right attitudes and values that the country needs to support its social fabric.
Additionally, this intervention has the potential to establish an elitist judicial dictatorship, which can ultimately blur the separation of powers, and obliterate fundamental structures of democratic governance.
The Judiciary must learn to separate that which is strictly legal, and that which should be left to be dealt with within the political domain.
That way, there will be created tranquillity in the country as each arm of the government respects constitutional delineation.
There is certainly no lacuna in the law regarding the impeachment of the Deputy President.
The constitution delegates the function to Parliament and does not anticipate or imply at all that any other arm of government should participate in the processes.
While the Judiciary might be genuinely pursuing justice in this process, it must not be lost to them that their involvement creates a perception that they are threatening to compromise the principle of separation of power, with serious ramifications for Kenya's fledgling democracy.
As Kenya strives to strengthen its governance structures to protect liberties and deliver justice to its citizens, all three branches of government must be cognizant of their jurisdictional delineation.
Professor Ongore is a Corporate Governance and Public Finance expert. He teaches at the Technical University of Kenya.
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