Gachagua, Mutuse line up top lawyers for impeachment battle

Deputy President Rigathi Gachagua will first face his accusers alone, then decide whether he will call witnesses if he will appear before the Senate.

In a two-fold strategy by his lawyers, Rigathi will challenge the process, including public participation and the involvement of National Assembly speaker Moses Wetangu'ula owing to his utterances of the impeachment motion.

He will then tear down the correctness of the evidence produced by Eckomas Mwengi Mutuse to sway the tide against his accusers.

Gachagua will face three witnesses other than Mutuse.

Nairobi governor Johnson Sakaja, Secretary to the Cabinet Mercy Wanjau and former acting Kenya Medical Supplies Authority (KEMSA) Chief Executive Officer Andrew Mulwa are the star witnesses against the embattled DP.

His lawyer, Victor Swanya, told The Standard that his legal team is ready to face anyone and everyone who will come their way.

He said they expect that Members of Parliament will play by the rule book.

According to him, the session before the National Assembly will be more of a debate than a trial, while in the upper house, they will square it out with the witnesses through cross-examination.

"The DP is represented by competent people and we are ready for any eventuality and consequences. Everyone in the country has a right to be presented by an advocate. We expect all institutions, including parliament, will be guided by the principles of our constitution and the rule of law," said Swanya.

Swanya added that as late as yesterday, more lawyers were joining the group. He said Kenyans should expect nothing less than a fight to the wire.

"We have not yet decided, but it is indicated that it will be merely debated. It is still early. Senate is where we will have a trial," he said while responding to whether they will call witnesses.

Gachagua's lead counsel is senior lawyer Paul Muite. The former Kabete Member of Parliament has an all-star fortune in the bar and politics and is expected to persuade Parliament that Gachagua should not go. Muite leads Gachagua's battery of lawyers, who also include Elisha Ongoya, Amos Kisilu, and Tom Macharia.

Ongoya has made his name as a legal scholar and an orator. The senior Kabarak University School of Law lecturer defended Embu Governor Kawira Mwangaza during the impeachment process.

In his closing submissions before the Senate during Mwangaza's impeachment, he reminded Senators the Socrates' philosophy of being a judge.

"Distinguished Senators, the governor invites this house to be guided by a certain philosopher by the name Socrates to all persons sitting as a judge as you do. Four things belong to a judge: to listen courteously, to answer wisely, to consider soberly, and to decide impartially," said Ongoya.

Senior lawyers Paul Nyamodi, Eric Gumbo, Dr Muthomi Thiankolu, and Peter Wanyama will prosecute Gachagua on behalf of Mutuse. The team, however, remained tight-lipped on who would do the honours of slaying Kenya's second in command.

Nyamodi is a household name known for fronting soft yet lethal legal punches. He was the lead counsel in prosecuting former Supreme Court Judge Phillip Tunoi and has appeared for the Independent Electoral and Boundaries Commission (IEBC) during presidential and parliamentary election petitions.

Gumbo, on the other hand, was instrumental in President William Ruto's 2022 Presidential election petition win by appearing for the IEBC.

Dr Thiankolu, a law lecturer, specialises in evidence law, constitutional, and administrative law. He worked at the president's office, where he designed the architecture of the Kenyan government under the 2010 Constitution. Thiankolu prosecuted Kawira Mwangaza's impeachment motion, which was rejected by the Senate last year.

In the meantime, the Senate and National Assembly have entrusted internal lawyers and outsiders to ensure that the 18 cases filed challenging the impeachment are terminated at the preliminaries.

Josephat Kuyoni and Mercy Thanji are appearing for both houses in the case filed by Gachagua. Other lawyers cited as being part of those entrusted to ensure that Gachagua is left with Parliament for a roast include Moses Kipkogei who was also key in defending IEBC in the last presidential election petition pitting Dr William Ruto against Raila Odinga.

There are 18 cases in total challenging Gachagua's impeachment. From the objections before the High Court, the strategy is to ensure all the cases are terminated before being substantively heard.

In its response, the Senate argues that the cases are premature.

"Parliament may either confirm or reject the proposed removal of the Deputy President from office, and as such, the court's jurisdiction at this juncture cannot be properly invoked. The court's jurisdiction should and ought only to be invoked after Parliament has made its final determination on the substance and propriety of the charges against the Deputy President by voting to either approve the removal or to dismiss the charges brought forth.

In the event that parliament does not impeach the Deputy President, the proceedings before the court would amount to an abuse of the court process," the response filed by Thanji reads in part.

On the other hand, the National Assembly hinges on its arguments that the cases should be struck out on the separation of powers principle.

It argues that the issues raised by Gachagua should be heard by Parliament first before the courts determine them. According to the lower house, the battles are unripe for judges to entertain.

At the same time, it asserts that the High Court has no powers to hear disputes arising from the impeachment of a Deputy President.

"Article 165 [3] [c] of the Constitution provides that the High Court has no jurisdiction to hear or determine a dispute relating to the removal of the President or the Deputy President from office on grounds of incapacity. By implication and for the same constitutional reasons, the High Court has no jurisdiction to determine the removal of the Deputy President by impeachment under Article 150 of the Constitution," argued Kuyoni.

President Ruto is said to have his legal team monitoring the impeachment process. They are said to be part of Mutuse's team.