Dramatic end to ouster process as Gachagua, his lawyers stay away

Deputy President Rigathi Gachagua's legal team led by lawyer Paul Muite (centre) walks out of Senate chamber on October 17, 2024. [Elvis Ogina, Standard]

The sight of their client on the political guillotine too hard to bear, lawyers of Deputy President Rigathi Gachagua retreated from a Senate chamber that had essentially sent the DP to the political afterlife.

Their absence would grant a methodical prosecution a free pass to heap all ills on an equally absent Gachagua, who was taken ill early yesterday afternoon.

The Defence had futilely tried to have Gachagua questioned next Tuesday, with a motion seeking to have the impeachment trial deferred to Saturday rejected by senators.

"Let me recognise the right of this honourable Senate to decide any issue put before it democratically. Arising from that decision, we as the legal team representing the deputy president are not able to continue appearing without instructions so we, humbly, and with a lot of respect, take your leave, Mr Speaker and the leave of this honourable House," said lead lawyer Paul Muite.

In their closing statement, the National Assembly would have a field day, arguing that their grounds had been proven, demanding that Gachagua be impeached.

Rarieda Member of Parliament Otiende Amollo argued that impeachment was a political process, tearing through Wednesday's surgical cross-examination of prosecution witnesses as "playing to the gallery."

Just as Kibwezi East MP Mwengi Mutuse - the mover of the motion - had argued, Amollo said that charges in impeachment proceedings need not be proved beyond a reasonable doubt.

"The questions that I heard my learned friends ask the mover look good to the public gallery but have no input to the impeachment process. Impeachment is like a vote of confidence or no confidence," said the lawmaker.

"The idea of impeachment is legal in process but political in content and merit. As long as the legal processes for the hearing are observed, it is not open to anyone to question the merit in terms of the decisions of the National Assembly or this Senate. The safeguard is in the numbers and that is why to move an impeachment motion in the National Assembly you need 117 members to support it and two-thirds to vote for it to pass," added Amollo.

He equated the impeachment of the DP by Parliament to an impeachment by the people.

"The 82 per cent of members of the National Assembly translates to 42 million out of the 50 million Kenyans," the MP went on.

Amollo said that the DP had admitted to violating the law as alleged in grounds 1, 5, 6 and 10, all of which touched on Gachagua's controversial "shareholding" remarks, around which the prosecution's case seemed to revolve.

"The deputy president has admitted to those remarks... I heard the lawyers of the deputy president saying that he did not act on those words... utterances are enough. They can do the very damage that the Constitution does not want to be done," said Amollo, who equally faulted Gachagua's justification that the DP was referring to the Kenya Kwanza power-sharing agreement.

"This is the Republic of Kenya, not the Republic of Kenya Kwanza. You cannot elevate the interests of Kenya Kwanza above the interests of Kenya... that in itself is an admission of the violation of the Constitution," he added, stating that the DP had referred to sharing positions in the government and not the coalition's structure.

Amollo also made the case that Gachagua had been found guilty of corruption, arguing that a conviction of corruption-related charges, in which the DP was asked to forfeit Sh200 million to the State, was never set aside.

"The deputy president was found to have funds that were proceeds of crime. No proof has been place before this Senate that the judgment has been set aside, compromised or revoked," said Amollo, who faulted the defence's assertions that a consent arrangement had been reached between the DP and the Assets Recovery Agency.

He argued that the admission amounted to abuse of office, since Gachagua secured his funds after ascending to the deputy presidency, having been convicted days before the 2022 general election.

"The record shows that Rigathi Gachagua was convicted of corruption," said Amollo.

His colleague, Tharaka MP Gitonga Murugara, argued that grounds relating to insubordination and bullying had been substantiated. He argued that senators should uphold the impeachment as Gachagua's place in the government was "untenable".

"If the deputy president were to be saved, with whom would he work? He cannot work with Kenyans," said Murugara, accusing the DP of marginalizing significant sections of the citizenry as non-shareholders. "He cannot work with his boss... He cannot work with this Parliament, which he calls a theatre of the absurd."

Murugara said the marriage between Gachagua and the Head of State was irretrievably broken, saying, "where a marriage is irretrievably broken, you cannot apply any law. The marriage is gone. It does not matter what law you apply."

Mombasa Women Representative Zamzam Mohamed said Gachagua had marginalised Kenyans, pointing out an instance in which the DP allegedly said residents of Taita Taveta County would miss out on development because they did not vote for the government.

"He thumped his chest, telling residents in Taita Taveta that they did not own any shares and that if they wanted development, he would reach into his pocket to check whether shareholders had been catered to first," said Mohamed.

Lawyer Eric Gumbo said that impeachment was a necessary constitutional tool to keep the political elite in check.

"Impeachment comes to hold our leaders on an even higher pedestal so that we have a tone at the top that is acceptable, a tone that gives us, what has been called elsewhere, political hygiene," he said.