Senate seeks to reclaim status in Gachagua impeachment

Deputy President Rigathi Gachagua arrives at the National Assembly building to defend an impeachment motion against him. [Elvis Ogina, Standard]

The Senate is set to reclaim its position as the upper house as it gets down to business to dispense with the impeachment trial of Deputy President Rigathi Gachagua.

Last week the National Assembly played its constitutional role of pre-trial chamber by finding the deputy president worth to be send home on 11 counts of wrong doing with 281 MPs voting in support of his impeachment as 44 voted against.

The Senate will have the opportunity to determine whether Gachagua is guilty of the 11 charges or not.

The house will this week interrogate each of the charges with several witnesses lined up to testify and answer questions.

The National Assembly, which in the matter of impeachment appears to be a lower house, saw Members vote in support or against the motion with little assessment of each charge.

Now senators are relishing the opportunity to distinguish the Senate as the Upper house as drafters of 2010 constitution had intended before that spirit was watered down by the Parliamentary Select Committee after the famous Naivasha draft (amendments).

Kisii Senator Richard Onyonka yesterday told The Standard that The Senate has wanted to reclaim its rightful place since it got the image of a toothless, old men club with their predecessors in the 11th and 12th launching the push to have the Senate play its rightful role of oversight to the National Assembly.

“It has taken more than 10 years for the Senate to reclaim its political space, the respect you see being given to the Senate is because we engaged with real issues affecting the country and our counties, the Senate is slowly establishing itself as the upper house, this must be shown by our statements and actions on serious national issues,” said Onyonka.

Homa Bay Senator Moses Kajwang said that the National Assembly can only indict while the Senate carries out the trial and makes the final decision in the removal of a president, deputy president, county governors, or deputy county governors.

Kajwang said it is during times of impeachment that the seriousness and seniority of the Senate becomes evident with 47 Senators capable of sending a President, a Deputy President, a Governor or Deputy Governor home.

“This makes the Senate the upper house and demands that Senators hold themselves to a higher standard than the other legislators as George Washington said. We pour our legislation into the senatorial saucer to cool it,” said Kajwang.

Deputy President Rigathi Gachagua arrives at the National Assembly building to defend an impeachment motion against him. [Elvis Ogina, Standard]

Kisumu Senator Tom Ojienda said it was time the Senate regained its position as the upper house since that is what was intended by the framers of the 2010 constitution. It was the duty of the Senate to ensure checks and balances between the two houses of parliament.

Ojienda said all crucial bills going through the National Assembly should come back to the Senate for review since that is the standard practice in all leading democracies like the United States of America and Great Britain which we emulated.

“The drafters of our current constitution had in mind the role played by the Senate of the United States of America and the House of Lords in Great Britain when they recommended the establishment of the Senate of Kenya as the upper house of parliament,” said Prof Ojienda.

Kitui Senator Enoch Wambua said the upper house of our bicameral Parliament will dispense justice in a manner consistent with its status when the impeachment of the deputy president comes up before it on Wednesday.

Constitutional Expert Bobi Mkangi said Kenyans did not design a hierarchy between the Houses of Parliament with the two houses relating functionally. The duty before the Senate is not a 'review' of the National Assembly insofar as the impeachment of an officeholder in the Presidency is concerned.

“Each house of Parliament has a distinct role, the National Assembly accuses; the Senate adjudicates and judges, while the latter is neither bound perhaps through political interests and dictates nor is it reviewing the stance of the former,” said Mkangi.

The Constitutional Expert who served in the Committee of Experts during the drafting of the current constitution said in the initial drafts, the Senate was the upper house but this was compromised by the Parliamentary Select Committee during the now infamous Naivasha discourse.

Mkangi told The Standard that the draft brought back to the Committee of Experts by the Parliamentary Select Committee absurdly stated that the National Assembly was the upper house after removing most of the powers of the Senate as originally envisioned.

“It was a very callous and myopic stance of the Parliamentary Select Committee I must state, they thought that they will be members of the National Assembly forever, forgetting the high turnover of MPs, in that institution, they feared the unknown,” said Mkangi.

He said because of the law governing their work, which guided that they could not tinker with the positions taken by the Parliamentary Committee, especially on contentious issues of which the interface between the two houses of parliament was one, the most they could do was to remove that incredible clause and try to beef up the powers of the Senate.

Political commentator Dismas Mokua said the 2010 constitution defines roles and responsibilities of the two Houses of Parliament in the impeachment of the Deputy President and that the Senate will not be reviewing the National Assembly position but would rather be playing its role as defined by the 2010 Constitution

“Article 145 as read alongside 149 and 150 provide a roadmap on the path taken to impeach the Deputy President and get a replacement, that the Senate is reclaiming its rightful position as the Upper House is not accurate at all,” said Mokua.