On Thursday last week, the Senate voted to uphold the impeachment of Deputy President Rigathi Gachagua, and the following day, President William Ruto nominated Interior CS Kithure Kindiki as the deputy president-designate.
The nomination was sent to the National Assembly, which voted and approved it. Later that evening, High Court Judge Chacha Mwita issued a conservatory order, followed by another from the High Court in Kerugoya, stopping Kindiki from assuming the new office.
This development has opened a whole pandora’s box regarding what it means constitutionally. However, former President of the Law Society of Kenya (LSK), Eric Theuri, has shed light on the matter, explaining the situation we are currently in.
Following the impeachment and subsequent appointment, some factions questioned the President’s haste, given that the law provides a 14-day window to appoint a new deputy president and grants the National Assembly 60 days to make the approval.
However, according to Theuri, the president did not violate any law and might have considered the fact that the country is in a precarious situation.
He explained that we currently do not have an Independent Electoral and Boundaries Commission (IEBC), and if anything were to happen to the president before the new deputy assumes office, it could create a constitutional crisis. This is especially concerning since the process that led to the impeachment of the deputy president is still being challenged in court.
“So I think that if you look at all that and you want to look at the stability of the country and putting the interest of the country at the forefront, there is nothing wrong in the manner in which the process was conducted. The president did the appointment within the period he was required to do and sent it to Parliament and Parliament voted as required under the Constitution,” he stated.
When asked who the current deputy president is, Theuri explained that Rigathi Gachagua has been impeached, and although a new deputy president has been appointed, that person has not yet assumed office. “So that is the current position we are in and until Kindiki’s appointment is reversed, we remain in that position,” he added.
Here is his explanation.
Theuri acknowledged that the situation might be confusing to some given that the impeached deputy president is no longer in office, while the deputy president-designate has been approved by Parliament but has not yet taken the oath due to the court orders.
He further noted that some may question the timeline of the process and argue that additional steps should have been taken before the parliamentary vote. “However, those are just arguments, and I believe that the court will address those issues and make a determination,” he said.
Theuri emphasized that Kenyans need to consider what the law says and whether the process complied with legal requirements—or at least met what could be called “substantial compliance.”
“I think that maybe eventually if the court is to determine this issue it gives clarity around that area and we must remember that as a country this is the first time we are impeaching a deputy President, we do not have legislation around the impeachment deputy president. We had the same scenario with the deputy Governors and and how to appoint them because the law was silent,” Theuri remarked.
Regarding the court orders, Theuri suggested that they may not remain in effect for long, as the court will likely consider public interest when making its decision.
“The court may want to look at the text of the law and the so-called violations and weigh the public interest and the element of the fact that as we say in law there cannot be there’s no proprietary rights in a public office,” he explained.
According to the former LSK president, after reviewing the case on its merits, the court may eventually set aside the orders, even though the petition remains ongoing.
“There’s nothing that is going to be lost. Eventually what is going to happen is that the court may make certain declarations that may in future guide the process of impeachment,” Theuri concluded.
By Newshub