The government has defended both the impeachment of former Deputy President Rigathi Gachagua and the appointment of Kithure Kindiki, telling the High Court that Parliament acted within the Constitution and that judges should not overturn political decisions reached by elected lawmakers.
Attorney General Dorcas Oduor, through lawyer Prof Githu Muigai, urged the Constitutional and Human Rights bench to dismiss petitions challenging Gachagua’s October 2024 ouster and Kindiki’s nomination by President William Ruto.
The State argued that Kindiki’s appointment did not require clearance from the Independent Electoral and Boundaries Commission despite claims by petitioners that the commission lacked officials to confirm eligibility at the time.
According to the Attorney General, the Constitution only demands presidential nomination followed by approval by the National Assembly.
The AG told the court that involving the IEBC is only optional and does not form part of the legal requirements for appointing a Deputy President.
Lawyers representing the State insisted that courts cannot act as appellate bodies over parliamentary processes, especially in impeachment matters which they described as political questions reserved for Parliament.
Muigai maintained that the role of the judiciary is limited to examining whether constitutional rights were violated during the process, but not reassessing the evidence or merits considered by lawmakers.
He defended the manner in which Parliament handled the impeachment motion, noting that the National Assembly passed it by 281 votes against 44 before the Senate upheld the decision with a 54 to 13 vote.
The lawyer also argued that public participation is intended to inform Parliament and does not bind legislators on the final outcome.
He further cited Article 145 of the Constitution, saying Senate decisions on impeachment carry finality, and warned that excessive court intervention could upset the balance between the arms of government.
Muigai dismissed claims that the Senate was required to establish a special committee before hearing the matter, arguing that the Constitution gives senators discretion because it uses the word “may” instead of “shall”.
At the centre of the proceedings is also a dispute over medical evidence linked to Gachagua’s condition during the Senate hearings.
The court admitted an affidavit by Dr Daniel Gikonyo stating that President Ruto contacted him concerning Gachagua’s health.
Respondents opposed the affidavit, saying it had been introduced late and contained new evidence that had not been presented earlier. They also signaled plans to contest the authenticity and reliability of the medical records.
Despite the objections, the judges allowed the affidavit to remain on record, saying it was necessary in the interest of justice.
Petitioners argue that Senate proceedings continued despite claims that Gachagua was medically unfit and unable to effectively defend himself.
They also accuse the National Assembly of failing to properly scrutinise evidence before approving the impeachment motion.
Respondents, however, insist Parliament acted lawfully and that the courts must respect the doctrine of separation of powers.
The hearing resumes on May 13, with legal teams expected to address cross-examination of medical witnesses, timelines for submissions and further handling of evidence.
The decision by the three-judge bench is likely to set a major precedent on how far courts can go in reviewing impeachment proceedings and senior political appointments.