Courts put legal threshold of public participation in judgements on trial

Impeached Deputy President RIgathi Gachagua with his lawyer Paul Muite. [Collins Kweyu Ogina. Standard]

Kenyan courts have wielded the doctrine of public participation  like a constitutional scalpel, striking down legislation and administrative actions whenever they find that the public had not been meaningfully consulted.

It is against this backdrop, the High Court’s June 8 judgment upholding the impeachment of former Deputy President Rigathi Gachagua has sparked debate.

In a case where more than 40 petitioners argued that public participation was deficient, a Bench known for striking down more elaborate legislative processes found the exercise sufficient.

In a 350-page ruling, Justices Eric Ogola, Anthony Mrima, and Freda Mugambi upheld the impeachment while settling several long-deferred questions: What does public participation require, and when does it not apply at all.

The answers trouble many in the legal fraternity. Since the promulgation of the 2010 Constitution, Article 10 has enshrined public participation as a national value binding on all State organs, while Article 118 mandates Parliament to facilitate it in its legislative and other business.

For years, judicial intervention consistently moved in one direction: demanding greater public participation.

The Building Bridges Initiative (BBI) Amendment Bill of 2021 put public participation under scrutiny as county assemblies that passed the Bill in under a week were found to have shown “total disregard of the people”.

The Supreme Court further held that the creation of 70 new constituencies without public participation rendered the process unconstitutional, affirming that meaningful and inclusive consultation was a constitutional imperative for decisions of such magnitude.

Subsequent rulings reinforced this trend.

In 2023, the Housing Levy was struck down. In 2024, the Court of Appeal nullified the entire Finance Act 2023 after the National Assemly introduced 18 new provisions post-public participation

Although the Supreme Court later reversed the nullification, it upheld the finding that the late additions were void.

In September 2024, Justice Chacha Mwita nullified the Privatisation Act 2023 in its entirety, citing a lack of meaningful public participation.

Appointments, health laws, and county legislations have faced similar fates.

Courts consistently measured adequacy against the gravity of the decision, demanding both quantitative and qualitative sufficiency, and showing little mercy for rushed processes.

Set against this record, the Gachagua findings stand out. Petitioners, including Gachagua himself, argued that the public was given less than 48 hours to digest complex charges against him.

Gachagua’s claimed public participation venues were inaccessible or changed without notice.

He alleged about 223,000 citizens participated out of a population of 52 million.

Petitioners noted there was no public participation before the vote to remove him, with the entire succession process — from Senate to the President’s nomination of Kindiki Kithure as Deputy President and National Assembly approval.

The Bench disagreed on all fronts. Justice Mugambi acknowledged the impeachment of a Deputy President as one of the most solemn and consequential decisions Parliament can make, requiring qualitatively and quantitatively meaningful public participation.

On low turnout, the judges drew a key distinction: the State’s duty is to facilitate public participation, not guarantee or compel it.

Thus low engagement does not render a process unconstitutional if the door was genuinely open.

This sits uncomfortably with earlier BBI rulings, critics note. They also question how the court could accept the withholding of Gachagua’s defence, given that courts have previously declared void new clauses added to bills after public participation. On Senate, the court held that when acting as a constitutional adjudicator in impeachment, it does not fall under Article 118 legislative mandate for public participation

Requiring participation before every significant parliamentary vote, the Bench warned, would erase the distinction between participatory and representative democracy.

The ruling builds on earlier cases. The impeachment of former Embu Governor Martin Wambora highlighted procedural fairness concerns.

Former Nairobi Governor Mike Sonko impeachment case clarified that removal from office is primarily legislative.

Kawira Mwangaza, the former Meru govenor, ouster cases showed courts’ reluctance to overturn impeachments unless there are clear constitutional violations.

While public participation meetings have gained broad acceptance, courts’ handling of fair hearing violations has drawn sharp criticism.

The Bench found the Senate violated Gachagua’s right to a fair hearing yet declined to nullify the impeachment, opting instead to reward him Sh50 million.

Law Society of Kenya president Charles Kanjama termed the ruling unprecedented.

Senior Counsel Ahmednasir Abdullahi described the ruling as constitutionally incoherent, while Martha Karua argued that a finding of a fair hearing violation required nullification of the impeachment.

Lawyer Donald Kipkorir described the judgement as ‘‘judicial absurdity” while former Chief Justice Mutunga questioned whether such a verdict could justify removal proceedings against the judges under Article 168(1)(d) and (e) of the Constitution.

Kipkorir likened the remedy to a “Cheptongei village tribunal judgement”.

“We agree your neighbour stole your cow. We see it in his compound. But since he has repaired the fence, we cannot return the cow. Instead, here is a goat for consolation.”

Even as Gachagua appeals the judgement,  the big question now facing constitutional lawyers is this: When a removal process is fast, formulaic, and politically urgent, how much public participation is enough?

The answer, it appears, may depend heavily on who is being impeached.