Fresh Legal Push Seeks Gachagua’s Reinstatement as Kenya’s Deputy President

A protracted legal battle over the deputy presidency in Kenya has intensified, raising the spectre of a constitutional crisis as competing factions pursue conflicting legal strategies. 

The immediate point of contention revolves around the impartiality of three judges assigned to hear the case, with petitioners demanding their recusal. Simultaneously, a separate legal campaign aims to reinstate former Deputy President Rigathi Gachagua, setting the stage for a complex and potentially unprecedented legal showdown. The immediate trigger for the current legal manoeuvring is a petition filed by a group of 32 individuals challenging the participation of Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi. 

The petitioners argue that the judges' previous actions, particularly in facilitating the swearing-in of current Deputy President Prof. Kithure Kindiki, indicate a predisposition that could compromise the fairness of the proceedings. They are seeking a reassignment of the case to a different panel of judges to ensure impartiality. Parallel to this challenge, another group is actively seeking Gachagua's reinstatement, hinging their argument on an earlier High Court ruling in Kerugoya that temporarily suspended the Senate's impeachment decision. 

This ruling, issued on October 18, 2024, effectively halted the appointment of a replacement for Gachagua and raised substantial constitutional questions. While the Court of Appeal subsequently invalidated the bench that overturned the Kerugoya decision, citing improper constitution, the pro-Gachagua petitioners argue that the original suspension order should remain in effect.

The implications of this legal wrangling are profound. Should the petitioners succeed in reinstating Gachagua while Kindiki remains in office, Kenya would face the unprecedented situation of having two individuals simultaneously claiming the deputy presidency. The Constitution makes no provision for such a scenario, creating a potential governance deadlock and raising questions about the legitimacy of executive actions.

The legal controversy originates from a decision by Justice Mwongo, who initially suspended the Senate's impeachment decision. This order was later lifted by a three-judge bench assigned to the case by Deputy Chief Justice Philomena Mwilu. However, the Court of Appeal has since quashed Mwilu's assignment of that bench, effectively nullifying all subsequent proceedings, including the lifting of Justice Mwongo's suspension order and the swearing-in of Prof. Kindiki.

According to lawyer Stanley Matiba, representing the petitioners advocating for Gachagua's reinstatement, this sequence of events renders Kindiki's assumption of office unconstitutional. Matiba argues that Kindiki should immediately cease acting as Deputy President until the legal ambiguities are resolved. Allowing him to continue in the role, Matiba contends, undermines judicial authority, contravenes the Constitution, and erodes public trust in the rule of law.

Interestingly, Gachagua himself has publicly stated that he is not interested in returning to the office. His legal team has informed the court that he would prefer to seek damages for the remainder of his term rather than reclaiming his position. However, those advocating for his reinstatement argue that the matter transcends Gachagua's personal preferences and is fundamentally about preserving the sanctity of court orders and upholding the rule of law.

These petitioners also raise questions about the process through which Kindiki assumed office. They contend that his appointment lacked parliamentary vetting and that he never formally resigned from his previous role as Cabinet Secretary for Interior. These procedural irregularities, they argue, further undermine the legitimacy of his elevation to the deputy presidency.

Chief Justice Martha Koome has intervened to regularise the composition of the bench hearing the case, but tensions remain high. The calls for the removal of Justices Ogolla, Mrima, and Mugambi persist, with lawyer Harrison Kinyanjui, leading the petitioners, insisting that the judges' previous rulings have irrevocably tainted their ability to oversee the matter fairly. They are demanding a panel of at least five new judges to handle the case, ensuring a more impartial determination.