Whether leaders removed from office through impeachment can still seek elective seats before their court appeals are concluded is now at the centre of a Supreme Court case after judges directed Attorney-General Dorcas Oduor to issue legal advice within 21 days before the matter can proceed.
The case has drawn attention because it touches on the political future of former Deputy President Rigathi Gachagua, former Meru Governor Kawira Mwangaza and former Nairobi Governor Mike Sonko. Each was impeached, challenged the decision in court and has remained active in politics as the legal battles continue.
Gachagua was removed from office by the National Assembly in 2024 before moving to court to challenge the impeachment. His appeal is still pending before the Court of Appeal as he positions himself among those expected to challenge President William Ruto in the August 2027 General Election.
Mwangaza was impeached in August 2024 after the Senate upheld the Meru County Assembly’s decision to remove her from office. She also moved to court to contest the process that led to her impeachment.
Sonko lost his position as Nairobi governor following his impeachment in 2020 and has continued pursuing court cases arising from his removal while remaining active in the country’s political scene.
Since leaving office, the three have each established political parties. Gachagua now leads the Democracy for the Citizens Party (DCP), Mwangaza heads Umoja na Maendeleo Party (UMP), while Sonko is the leader of the National Economic Development Party (NEDP).
The constitutional reference was filed in April by Meru County Assembly Speaker Ayub Bundi Solomon, who wants the Supreme Court to interpret Chapter Six of the Constitution together with Articles 99 and 193, which set out the qualifications and disqualifications for those seeking elective office.
“This is a non-adversarial reference for an advisory opinion. The reference arises from the unresolved uncertainty at the heart of the leadership and integrity framework under Chapter 6 of the Constitution,” Bundi said.
In court papers dated April 10, Bundi argued that orders suspending impeachments while appeals are pending have allowed leaders removed over integrity issues to continue qualifying for elections as their cases move through the courts.
He further told the court that more than 15 years after the Constitution came into force, there is still no final interpretation on whether a person removed through impeachment automatically falls short of the leadership and integrity standards set under Chapter Six.
According to Bundi, the uncertainty has led to different interpretations by courts and public institutions, creating confusion over the constitutional requirements for those seeking public office.
Instead of hearing the constitutional questions immediately, the five-judge bench directed Bundi to first seek the Attorney-General’s opinion before the proceedings continue.
The bench was led by Deputy Chief Justice Philomena Mwilu and included judges Smokin Wanjala, Isaac Lenaola, William Ouko and Mohamed Warsame.
The judges also postponed applications by the Independent Electoral and Boundaries Commission and the Ethics and Anti-Corruption Commission to join the proceedings. The two commissions argued that they have constitutional responsibilities relating to candidate eligibility and integrity.
Bundi had opposed the requirement to first seek advice from the Attorney-General, arguing through his lawyers that a separate advisory opinion delivered by the Supreme Court in 2024 showed the process was not mandatory. They also argued that the structure of devolution made that route unsuitable.
The judges disagreed.
“Rule 53 of the Supreme Court Rules 2020, together with the list of authorities cited by the applicant, clearly set out the requirement to seek the Attorne100y-General’s advice before filing a reference,” the court said.
They added that such advice “may resolve the question before us to the applicant’s satisfaction, thus saving precious judicial time”.
The bench also found that the present matter was different from the earlier advisory opinion because the Attorney-General had been the applicant in that case and therefore could not be expected to advise the same office.
“We therefore find no justification for the applicant’s failure to seek the Attorney-General’s advice in this case and his reliance on the Martha Karua case is obviously misguided,” they ruled.
The judges further dismissed claims that devolution prevented the Attorney-General from offering legal advice.
“The devolution system as presently designed does not also preclude the Attorney-General from giving advice, particularly in a matter of public interest,” the judges said.
0The case will be mentioned on August 10 after the Attorney-General files the required advisory opinion.