Gachagua impeachment: Court orders second round of public participation at constituency-level
The High Court sitting in Kirinyaga has ordered the National Assembly to conduct a second wave of public participation regarding Deputy President Rigathi Gachagua’s ouster motion.
The impeachment motion was tabled on October 1, 2024, by Kibwezi West MP Mwengi Mutuse, supported by 291 MPs, citing 11 grounds.
As the country prepared to participate in the first wave of public participation to collect views regarding the ouster motion, Kirinyaga Woman Rep Njeri Maina moved to the Kerugoya High Court and secured the second wave of public participation.
She moved to court on October 2, 2024, challenging the sufficiency and effectiveness of the Friday public participation as directed by the Speaker of the National Assembly, Moses Wetang’ula.
Her citation, filed by Muge Law Advocates, was against the Senate and the National Assembly, both of which bear the responsibility to, in concurrence, uphold or dismiss the ouster motion.
On October 3, 2024, Justice Richard Mururu Mwongo ordered the National Assembly to conduct a second round of public participation at the constituency level in each constituency in the Republic of Kenya.
The Court deemed the public participation limited to the county level, as directed by the Speaker of the National Assembly, to be insufficient, thereby ordering an expanded public participation exercise.
The orders, granted in part, observed that the constitutional threshold for public participation must be “reasonableness of notice” and “opportunity for public participation,” and that the principles for public participation remain manifest.
The orders held that the constitutional principle under Article 10(2) of the Constitution means that public participation applies to all aspects of governance.
“The public officer or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. The lack of a prescribed legal framework for public participation is no excuse for not conducting it; the onus is on the public entity to give effect to this constitutional principle using reasonable means,” the judge observed.
Justice Mwongo added that public participation must be real and not illusory… not a cosmetic or public relations act… not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement.
“There is a need for both quantitative and qualitative components in public participation. Public participation is not an abstract notion; it must be purposive and meaningful. Public participation must be accompanied by reasonable notice and reasonable opportunity,” Justice Mwongo so directed. The court observed that “reasonableness” will be determined on a case-to-case basis and that ‘public participation is not necessarily a process consisting of oral hearings; written submissions can also be made.”
The judge said components of meaningful public participation include the following: structures and processes (medium of engagement) of participation that are clear, clarity of the subject matter for the public to understand, opportunity for balanced influence from the public in general, commitment to the process, inclusive and effective representation, and integrity and transparency of the process.
The judge further added that public participation must reflect capacity to engage on the part of the public, including that the public must first be sensitized on the subject matter.
“In light of the foregoing, it is hereby directed and ordered as follows: that the public hearings to be held on 4th October 2024 may proceed as a first stage of public participation,” and then a further similar exercise be organised closer to the citizens, at least at the constituency level in each constituency in Kenya,” the judge directed.
He said this is to enable the constituents of Members of Parliament responsible for the impeachment process nationally to engage with and participate in hearings and/or any other suitable modes by which citizens at that level can participate and offer their representations. The judge said that more concise directions will be issued on October 11, 2024, when all the parties will appear before the court.
“To be clear, the consequence of the orders of the Honourable Court is that the ongoing impeachment process cannot proceed until a proper public participation exercise led by each Member of Parliament in their respective constituencies is undertaken,” Ms Maina said immediately after she secured the orders.
She said members of Parliament must understand that the impeachment of an elected Deputy President is a grave matter, and the ultimate say must come from the people who elected him.
“A boardroom signature is therefore insufficient and must be explained to and approved by the citizens of Kenya,” she said.
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