EXPLAINER: Why Gachagua wont be on the ballot

Former Deputy President Rigathi Gachagua last night said that he will vie for presidency in 2027.

In spite of being removed from office through impeachment, Gachagua, who has formed the DCP party, believes he still has a chance.

“Our laws say if you have not exhausted all legal mechanisms, you are free to vie for any office. Rigathi Gachagua's case has not even started, it will go to the high court, then to the court of appeal and if it will not go well, we go to the Supreme Court. Before it is concluded at the Supreme Court, Rigathi Gachagua will vie for the presidency and he will win with so many votes,” Gachagua told Citizen TV’s Yvonne Okwara on Sunday night.

However, what does the law state? Is Gachagua eligible to run? As it stands now, the former Mathira MP can not be cleared to contest. Reason?

Impeached state officers can not subsequently run for election to any other state or public office ever again within Kenya, unless the impeachment is successfully challenged and quashed by a court of law.

Chapter Six of the Constitution on Leadership and Integrity makes it clear that a state officer kicked out for abuse of office is barred from holding any other state office.

Gachagua who faced 11 charges, including corruption, inciting ethnic divisions and undermining government was impeached in October 2024.

The supreme law bars a person who is removed from office for violation of the integrity provisions of Chapter Six from holding any other State or public office.

 “A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office,” Article 75 (3) states.

This is the same provision that was used to bar Mike Sonko and Ferdinand Waititu from running for office in the last election as governor of Nairobi and Kiambu respectively. The two were impeached by their respective county assemblies.

Gachagua’s reliance on the right to exhaust all appeal avenues can only be applied in criminal trials. Persons convicted of any crime, can still contest electoral seats as long there is a pending appeal.

Refer to the case of Sirisia MP John Waluke who was jailed for 67 years over the NCPB scam just months to the genera election but was released on appeal and proceeded to be re-elected.

Prior to 2013, the high court ruled that a person can not be barred from running for office unless one has exhausted the right of appeal. This is the verdict that allowed Uhuru Kenyatta and William Ruto to run for presidency in spite of facing crimes against humanity in ICC.

The two ended up being elected as president and deputy in polls held on March 4, 2013 with Ruto managing to succeed his boss in 2022.

Now for Gachagua to overcome this, his lawyers must convince the high court to quash the impeachment.

Article 137 of the Constitution states that the qualification to run for president are same as that of a member of parliament.

Article 99 of the constitution then states that a person is disqualified from being elected a member of Parliament if ‘the person--(h) is found, in accordance with any law, to have misused or abused a state office or public office or in any way to have contravened Chapter Six.’

Article 99 (3) provides that a person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.

The courts have interpreted that the exemption applies to 2 (g) where one is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election.

This is because Article 75 has already closed the door for impeached person’s quest to return to public office.

If Gachagua is successful in his appeal, then he will be on the ballot to challenge his former boss.

The Ethics and Anti-Corruption Commission (EACC) being the board overseeing Chapter Six, is on record saying that those who have been impeached fail the integrity test to run for public office.