The impeached former Deputy president Rigathi Gachagua’s legal team had placed all its eggs in one basket: “conservatory orders” to keep alive their forlorn hopes of their client’s reinstatement to his former rank.
The High Court put their legal misconceptions to rest when it ruled that such pleadings to sustain conservatory orders were not in the public interest.
This article chronicles what happened in the Kenyan courts in determining whether the impeachment of the former Deputy President of Kenya, Rigathi Gachagua, was legal or not.
There is also a preview of my comparative observations on how Kenyan courts decide similar cases when gauged with Tanzanian ones.
CONSERVATORY ORDERS DEFINED
A conservatory order is a judicial remedy granted by the court as an undertaking that no action will be taken to preserve the subject until the motion of the suit is heard.
It is an order of status quo to preserve the subject matter.
LEGAL ISSUES RECOUNTED
So far, the legality of the conservatory orders has assumed a sense of urgency and finality in the case of Rigathi Gachagua.
The hearing of the matter was a trendsetter for melodrama and apprehensions that the judicial proceedings were compromised from beginning to end.
The Gachagua legal team had successfully persuaded one High Court judge to grant them ex-parte conservatory orders to halt impeachment proceedings and swearing in of newly appointed deputy president Kithure Kindiki.
The High Court judge ruled in favour of Gachagua that his legal team had raised constitutional and legal issues that were preponderant enough to warrant the prayers sought to be granted.
READ RELATED: Gachagua’s Impeachment: What Can Tanzania Learn from Kenya’s Democracy?
After the conservatory orders were issued, Kithure Kindiki’s swearing-in ceremony was suspended pending further court determination of the matter.
No sooner had the AG been slapped with the conservatory orders than she assembled a dream legal team to plead with the courts to vacate them.
It is of considerable note that the AG appointment was anathema to Gachagua’s political agitations of shareholding in binging the Kenyan cake.
Obviously, you can imagine how dedicated the AG was to ensuring Gachagua’s legal assault came to a halt since he was an existential threat even to her own government portfolio.
The dream team lodged their application in the High Court, challenging the legality of the conservatory orders issued by the ex parte.
The Gachagua legal team, too, fought back, raising partiality grounds to seek the recusal of the bench formed by the deputy chief Justice, Philomena Mwilu.
The grounds for recusal included whether the deputy chief Justice had the power to form a panel of three high court judges to hear and determine the matter. A more inimical ground was bias.
The Gachagua legal team surmised that a conflict of interest tainted the two judges on that bench.
One of the allegations was that one of the judges had his wife appointed to the Board of Directors while the other judge was once special legal counsel for the main beneficiary of the impeachment proceedings: Professor Kithure Kindiki.
The court investigated the allegations and concluded that the aspersions of bias were meant to intimidate the Bench through character assassination.
On the issue of appointment powers for a panel of three judges, both the High Court and the appeal court ruled that the appointment of a panel of three judges was an administrative function, not a legal one, and the Deputy Chief Justice had the prerequisite authority to appoint it.
Some legal scholars have questioned the logic of getting bogged down in preserving the conservatory orders. At the same time, the Gachagua team should have focused on overturning the proceedings that were before the bicameral parliament.
They averred that the courts have the power to annul everything the parliaments have done and revoke even the swearing-in ceremony of the Kithure Kindiki. So why was the Gachagua legal team obsessed with preserving the conservatory orders that were temporary and had a life cycle of less than 60 days since their client was removed from office?
Time was not on their side!
Moreover, the scholars passionately argued that the Gachagua legal team was wasting time on trivial matters. At the same time, the substantive issues could only be heard within sixty days from the day the Senate voted to remove their client from office.
Personally, I saw the oversights the Gachagua legal team had committed echoed those of the legal team of the then-Vice President Al Gore, who in 2000 challenged the Florida State presidential vote count by asking for a recount in specific counties where he believed his votes were undercounted!
The US Supreme Court ruled that it did not have jurisdiction to order a recount because of time limitation statutes.
Despite violating the Fourteenth Amendment by using disparate vote-counting procedures in different counties, Florida did not need to complete a recount in the 2000 presidential election because it could not be accomplished constitutionally validly within the time limit set by federal law for resolving these controversies.
It was an election where blacks who were most likely to vote for Al Gore were barred from voting on frivolous excuses such as their names erroneously surfaced in convicts’ records (convicts are not permitted to vote in Florida) or were missing in the voter register or some of the blacks did not carry a valid ID. Vote rigging in the US is real while, unsurprisingly, scantily documented.
Much later, one female journalist asked the leading attorney in Al Gore’s presidential legal assault whether he had made the correct judgment to seek a County by County recount when he could have requested a recount for the whole of Florida State and saved a lot of time.
The learned lawyer agreed and dejectedly conceded he had to live with that mistake for the rest of his days.
The Florida vote was ultimately settled in Bush’s favour by 537 votes out of 5,825,043 cast when the U.S. Supreme Court, in Bush v. Gore, stopped a recount initiated upon a ruling by the Florida Supreme Court.
Bush’s win in Florida gave him a majority of votes in the Electoral College and victory in the presidential election.
The Gachagua legal team had opened more than 30 petitions, but the majority of those were thrown out for lack of merit.
Others that squeezed themselves in judicial consideration played out over preliminary disputes involving the High Court and the Appeals Court while the substantive issues have not even been argued in Court.
The High Court vacated the conservatory orders on one ground: the constitutionality of public interest.
The issue of public interest is interesting as the name itself blips.
The High Court took considerable time to evaluate the responsibilities of the deputy president, as spelt out in the Kenyan constitution. It concluded that the courts could not allow a vacancy in that position under any circumstances.
The conservatory orders were nugatory. The High Court cited a number of constitutional articles and ruled that the constitutional functions of the deputy president were prerogatives of the holder of that office and could only be exercised by the president under extraneous circumstances. Courts could not be parlayed to create such unforeseeable ones.
After the vacation of the conservatory orders, the Gachagua’s legal team breathed fire after sensing the “end of the road” to their client and frantically pleaded with the panel of three judges to issue “orders of stay” to preserve the status quo ante.
The High Court was unamused and could not take a second bite in its ruling.
That amounted to an abuse of judicial process since the Court was now ‘functus officio‘. The Court viewed that late legal incursion to persuade it to torpedo its ruling, even on temporary basis terms, as an act of profound “absurdity”.
Of noteworthy interest to the Tanzanian judiciary is the abruptness with which the Kenyan High Court granted leave to appeal to the Court of Appeal without the Gachagua legal team even requesting it!
This is in stark contrast to the Tanzanian judiciary, where orders of leave to appeal are seldom granted unrequested, and even if the disgruntled party asked for them, he was likely to be denied.
Once the Kenyan High Court had ruled that the Gachagua legal team had raised constitutional and legal issues of national importance, it took it upon itself to grant leave to appeal without waiting for the losers of their decision to ask for it.
Tanzanian courts habitually resist granting such leave to appeal because they do not want their rulings and orders re-evaluated for legality and appropriateness.
It is a cynical way to shield herself from judicial accountability for her deeds and misdeeds.
The way the Kenyan judiciary is formed through a rigorous, transparent, competitive, accountable, and interactive process largely narrates why the judiciary is sensitive to protecting and enabling those who may feel aggrieved by its decisions.
In Tanzania, the judiciary is insulated from such a recruitment and promotion process. As a result, the Tanzanian judiciary behaves like a “trigger-happy cowboy” who is the law unto himself and accountable to nobody but himself.
Tanzania has a lot to learn and domesticate from the Kenyan judiciary, a system of effective public accountability if she aspires to execute nothing but justice for all.
She may opt to persevere in insulating the judiciary from public scrutiny and permitting it to be a cudgel to inflict injustices on the poor and enrich the filthy rich for avaricious reasons.
It is a pivotal choice we need to make urgently! In the meantime, the Kenyan High Court will continue on November 7, 2024, to determine the legality and constitutionality of former Deputy President Rigathi Gachagua’s impeachment and removal from office.
The Gachagua legal team’s unforgivable “mea culpa” was to equate the position of the deputy president with that of a governor, and this ruling has caught them napping to their collective chagrin.
The Gachagua goose is now cooked and ready to be served. I will be there to pick my portion.
Messr Kithure Kindiki has been sworn in as the deputy president of Kenya and is answering his public call to duty by delivering the Kenya Kwanza manifesto to all Kenyans and non-Kenyans living within the Republic of Kenya’s boundaries.
Unlike Messr Gachagua, whose major flaw was his failure to graduate from Mathira MP to national leader, his Mount Kenya compatriot Kithure Kindiki is a full-fledged national leader unencumbered by ethnic deadweights.
Gachagua perceived deputy president position was for fellow tribesmen in Mount Kenya, he was very wrong.
His impeachment and removal from office were spot on from legal and political angles. May God be with both of them always.
We will always be grateful to former Deputy President Rigathi Gachagua for his tireless and unselfish efforts to interrogate his impeachment proceedings, but behind the flash of cameras, I seriously wonder whether that futile exasperation could have been dispatched better by resignation and projecting himself to wage another political battle much later.
Now, his political career lies in limbo. He could be barred from gunning down a public office for life. What a waste for such a talented individual!
Well, opinions on this are multifarious and very partisan, so better quietly shutter the debate, at least for now.
