Why Senate will have the final word on Gachagua's fate, after all

Members of the National Assembly overwhelmingly signed a Motion to impeach Deputy President Rigathi Gachagua, but that is just part of the process, they are not the ultimate decision makers.

Gachagua’s fate lies with the 67 Senators who will either bury or rescue the political career of the embattled deputy president who joined elective politics as Mathira MP in 2017.

Article 145 of the Constitution gives the Senate power to decide whether Gachagua remains or goes home after the National Assembly is dispensed of its role of initiating the process. 

Already, a number of senators have expressed reservations over the impeachment since tabling of the motion before the National Assembly.

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Nairobi Senator Edwin Sifuna said he was waiting for the matter to come before the Senate where they  will interrogate it keenly to see whether it has any value to the public. 

A Gachagua supporter, Kiambu Senator Karungo wa Thangwa has had strong comments since Tuesday. “The Pandora’s box has been opened! He posted on his x platform. “The Constitution is coming full circle, and they will regret it.”

Yesterday, he posted; “It feels like we were elected solely to impeach one another. Just as legislatures can impeach governors and presidents, citizens should impeach us -the MPs, through mechanisms like Bunge la Mwananchi- or mini referendums. Let’s empower the people.”

The DP impeachment bid is in the hands of representatives with such divided views.

On Tuesday, National Assembly Speaker Moses Wetang’ula said the charges against the deputy president are made at the National Assembly while the trial will be made at the Senate. He said the National Assembly is not obliged to bisect, dissect or respond to what the deputy president or his representative says while before the House but to just vote and forward the material to the Senate for trial.

“If you read the Constitution carefully, you will see this is the House where charges are made, the trial chamber is the Senate. This chamber could easily vote on the motion after the mover and the seconder, if there is nobody debating it and forward all the material to the Senate for trial...” He told the house

The Clerk of the National Assembly Samuel Njoroge has already published an advertisement, inviting the public to make oral or written submissions and representation on the special motion for removal of office, by impeachment of Gachagua to be held tomorrow across the country.

“The public may submit views of special motion for the removal from office, by impeachment, the Deputy President. The views may be forwarded to the Clerk of the National Assembly to be received on or before Saturday, October 5,” said Njoroge, in the notice.

The law provides that the motion should be supported by two-thirds or 233 MPs and within two days, the Speaker will be expected to inform his Senate counterpart.

The Deputy President will continue to perform functions of the office pending the outcome of the proceedings.

Article 145(3) states that within seven days after receiving notice of a resolution from the Speaker of the National Assembly, the Speaker of the Senate is to convene a meeting of the Senate to hear charges against the Deputy President and the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.

A special committee appointed investigate the matter and report to the Senate within ten days whether it finds the particulars of the allegations against the Deputy President to have been substantiated.

The DP will have the right to appear and be represented before the special committee during its investigations.

If the special committee reports that the particulars of any allegation against the Deputy President have not been substantiated, further proceedings shall not be taken in respect of that allegation or if they have been substantiated, the Senate will, after according the Deputy President an opportunity to be heard, vote on the impeachment charges.

Uphold impeachment charge

If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the Deputy President shall cease to hold office.

The motion to impeach Gachagua was moved by Kibwezi West MP Mwengi Mutuse, who insisted he has no grudge, malice, ill-will or personal vendetta but he is just doing his duty as a Kenyan and an MP.

Mbeere North MP Geoffrey Ruku sought the threshold of impeaching the DP, given that four seats in the National Assembly are currently vacant.

“Four seats are vacant because two MPs were appointed to the Cabinet while Magarini and Banisa constituencies do not have an MP. In this regard, there are 345 and not 349 MPs in the House, so what will determine if the special motion meets the constitutional threshold? In my view, vacant seats should not be counted in determining voting threshold,” he said.

But Wetang’ula ruled that a member who proposes a motion for the impeachment of a President or Deputy President must be supported by at least one-third of the 349 members of the House, being 117 Members.

“By extension, for the House to pass a resolution on a motion for the impeachment of a President or Deputy President, the Motion must be supported by at least two-thirds of the 349 Members of the House, being 233 Members. Article 124(3) of the Constitution provides that the proceedings of a House of Parliament are not invalid merely on account of a vacancy in its membership,” the Speaker explained.