Draft:Impeachment of Rigathi Gachagua

The impeachment of Rigathi Gachagua, Kenya's deputy president, was initiated on October 1, 2024, after Kibwezi West Member of Parliament, Hon. Eckomas Mwengi Mutuse, moved a motion for impeachment in parliament. 10 charges were brought against the deputy president including amassing a wealth of $40 million in two years against an annual salary of $93,000, promoting ethnic discrimination, undermining public unity through divisive public statements, undermining the judiciary, interfering with devolved county functions among other charges.

The motion was signed by 271 members of parliament against a threshold requirement of 117 Mps. It is the first time a Kenyan deputy president has been tried for impeachment under the Constitution of Kenya which was promulgated in 2010.

Kenyan Members of Parliament will vote on the articles of charges brought before the House. For the House to pass a resolution on the Motion of 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. If Members vote to adopt the Motion, it will make Rigathi Gachagua the first deputy president to be removed from office through an impeachment trial. In 1989, then Vice President, Joseph Karanja, resigned when faced with a similar vote.

Once the articles of impeachment are adopted, the process is sent to the Kenyan Senate for adjudication where it will require support by at least two-thirds of the members (excluding nominated members) to pass.

Background

The first calls to impeach Rigathi Gachagua were initiated by Jack Wamboka (MP-Bumula Constituency) back in January 2023. This was in response to the deputy president telling Nairobi County Governor to go slow on business and matatu operators in the city.The MP accused Gachagua of division and tribalism.

Rigathi Gachagua experienced a fall out with President William Ruto and was subsequently accused of funding the Kenya Finance Bill Protests of 2024. The first efforts to impeach him were initiated by allies of the president from the United Democratic Alliance (UDA), notably Hon. Mwengi Mutuse (Kibwezi West) who filed a Notice of Special Motion of Impeachment in parliament on October 1, 2024.

Several days earlier, leaders including the Speaker of the House and the Leader of the Majority spoke publicly and supported the move with the latter stating he had appended his signature for the removal of the deputy president.Members of the opposition party, ODM, including Babu Owino supported the motion to oust Rigathi but ODM's deputy party leader, Simba Arati, distanced the party from playing any part.

The motion of impeachment was accepted by House Speaker, Hon. Moses Wetangula, to a thunderous applause by Mps with the Speaker further directing Hon. Mutuse to move the motion on the floor of the House as required by Standing Orders.

Several Members of the House, including: Leader of the Majority Party, Kimani Ichung'wah; Leader of the Minority party, Junet Mohamed; the Majority Chief Whip, Sylvanus Osoro, among others raised concerns on protocol. The Speaker addressed the issues, first - on the threshold required in the vote for passing the resolution and second, on the issue of public participation.

The Speaker set October 4, 2024 as the day of public participation to be conducted across the 47 counties, and directing the Clerk of the National Assembly to communicate full details of the program, through electronic and print media from October 2, 2024. The deputy president was invited for a hearing on October 8, 2024.

At least 10 petitions were filed in court by Mr. Gachagua and his allies in a bid to halt his impeachment.In a 144-page petition filed in Nairobi, the deputy president stated that the charges brought against him seeks to overturn the will of the people of Kenya. The deputy president further stated in the media that the president could stop the Mps if he wanted otherwise he (the president) was involved with the process.

Articles of Impeachment

On October 1, 2024, Kibwezi West Member of Parliament Mwengi Mutuse drafted the initial charges which included:

1. Making Inciteful Remarks
2. Undermining the President and Cabinet
3. Interfering with the leadership of Nairobi County Government
4. Attack against Lady Justice Esther Maina of the High Court of Kenya
5. Violating the oath of office
6. Violating the National Cohesion and Integration Act
7. Amassing wealth of Ks. 5.2 Billion Shillings (approx $40 million) illegally
8. Misleading the public
9. Gross misconduct
10. Bullying

Impeachment Vote

Provisions of articles 144 and 145 of the Constitution of Kenya regard to the removal of the president, and with modifications, apply to the removal of deputy president on grounds of: mental or physical incapacity and impeachment. The motion requires at least one-third of the of all the member votes to move it. Submission of the Notice of Special Motion of Impeachment was moved on October 1, 2024, and was signed by 291 Members against a requirement of 117. The Speaker accepted the motion, stating it met the threshold and set the lapse of the motion for to October 8, 2024.

Following that, there will be a debate on the floor of the House, probably lasting several days. This vote requires at least two-thirds vote to pass the resolution. If this vote passes, the Speaker is to inform the Speaker of the Senate of the resolution within 2 days and the deputy president shall continue to perform the functions of the office pending the outcome of the proceedings. Within seven days after receiving the notice, the Speaker of the Senate shall convene a meeting of the senate to hear the charges against the deputy president.

Senate Hearings

The Senate, by a resolution may appoint a special committee compromising of 11 members to investigate the matter. Article 145(3)(b) of the Constitution of Kenya state that the Special Committee appointed shall (a) investigate the matter, and (b) report to the Senate within 10 days whether it finds the particulars of the allegations against the President to have been substantiated.

The deputy president appointed a team of 20 lawyers, including senior counsels Paul Muite, Victor Swanya, Tom Macharia, Amos Kisilu, and Elisha Ongonya to represent him.

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; and if they have been substantiated, the Senate shall, after according the deputy president an opportunity to be heard, vote on the impeachment. If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the DP shall cease to hold office.

Responses

At least 10 appeals were filed to halt the impeachment of Rigathi Gachagua. On October 2, 2024, Kirinyaga County Women Representative, Jane Njeri Maina, filled an urgent application against the National Assembly, Senate and others - challenging the adequacy and effectiveness of public participation on the impeachment. On October 3, 2024, the High Court sitting in Nairobi declined to issue orders on public participation on the matter, ordering parties to appear before the court on October 10, 2024.

This was hours after Gachagua moved to court seeking conservatory orders to stop his impeachment. The deputy president, through his lawyers, claimed that the motion to impeach him was founded on deceit and misrepresentation of material facts. Jane Njeri Maina (Kirinyaga Women Rep) was summoned by the Directorate of Criminal Investigation (DCI) the same day over alleged plans to mobilize goons during the public participation of the impeachment.

On October 4, 2024, the High Court sitting in Kirinyaga ruled on the application. Justice Richard Mwongo ordered the National Assembly to conduct fresh rounds of public participation, at least down to the constituency level. The Clerk of the National Assembly, S. Njoroge said that the ongoing public participation exercise had been extended to Saturday October 5, 2024.

Public Opinion

There were disturbances across the country during the public participation. Several areas witnessed chaos as residents claimed the exercise was a fraud and mere formality.During the hearings at Bomas of Kenya, lawyer and political activist, Morara Kebaso, was attacked by goons.The meeting was disrupted when attendees started chanting anti-Ruto slogans, a pattern witnessed across the country where the public demanded impeachment of both the president and his deputy.Additional security was deployed across the constituency offices in the country after the chaos of the first day.