Lawyer Ndegwa Njiru now argues that Kithure Kindiki is unfit to take over as the Deputy President should the court uphold the impeachment of Rigathi Gachagua.
During Court proceedings on October 29, Njiru highlighted that the Public Appointment Parliamentary Approval Act establishes specific criteria for Parliament to follow including the necessity of public participation in the appointment process.
“Paragraph six of the Public Appointment Parliamentary Approval Act creates a criterion upon which the parliament must follow to satisfy the need for public participation,” he said.
“It also creates time with which this must be executed. The exercise was done within six hours.”
Ndegwa Explains Why Kindiki is Unfit to Replace Gachagua
Ndegwa maintained that article 10 of the Constitution requires state organs to adhere to its provisions whenever they execute functions conferred upon them by the Constitution or by law.
“The question of public participation even in the process of nomination of the said candidate is paramount,” he added.
He also revealed that President William Ruto sought approval and confirmation from the Independent Electoral and Boundaries Commission (IEBC), and the response he received was sufficient to provide the courage to forward the name for voting in Parliament.
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However, he questioned whether the IEBC possesses the requisite constitutional capacity to submit or endorse the name for the purposes of voting in Parliament.88, 99, 137 0f the constitution
“Currently the IEBC has no capacity to execute the administrative functions and has no capacity to execute the function under article 99 as read together with article 137 of the constitution,” Ndegwa argued.
The lawyer further disputed that the secretary and the secretariat can only carry out the power vested in their offices when the commission is in place, excreting its powers since it implements what the commission has approved or resolved.
“The name that was submitted to parliament is not capable of replacing in the event this court dismisses out petition and upholds the petition the Deputy President of Kenya,” he said.
“If the orders are lifted, we shall not have a person has not been duly appointed in accordance with the constitution taking over the office of the Deputy President.”
What Part 6 of Public Appointments (Parliamentary Approval) Act Says
Paragraph six (6) of the Parliamentary approval act states that upon receipt of a notification of appointment, the Clerk shall invite the Committee to hold an approval hearing.
The Committee shall determine the time and place for the holding of the approval hearing and shall inform the Clerk.
The Clerk shall notify a candidate of the time and place for the holding of an approval hearing.
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The Committee shall notify the public of the time and place for holding an approval hearing at least seven days prior to the hearing.
Subject to this Act, all Committee proceedings on public appointments should be open and transparent.
Despite subsection (5), a Committee may, on its own motion or on the application of a candidate or any other concerned person, determine that the whole or part of its sittings shall be held in camera.
An approval hearing shall focus on a candidate’s academic credentials, professional training and experience, personal integrity and background.
The criteria specified in the Schedule is used by a committee during an approval hearing for the purposes of vetting a candidate.
Any person may, prior to the approval hearing, and by written statement on oath, provide the Clerk with evidence contesting the suitability of a candidate to hold the office to which the candidate has been nominated.
A candidate may, at any time, by notice in writing addressed to the Clerk, withdraw from the approval process and the candidate’s nomination shall thereupon lapse.
Ndegwa is part of the Gachagua’s legal team, challenging the impeachment of Gachagua. Others are Senior Counsel Paul Muite, Elisha Ongoya, Tom Maina Macharia, Willis Echesa and Andrew Muge.
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