Former Deputy President Rigathi Gachagua.
It’s not even 2026 yet and the so-called “United Opposition” is one hot mess – an imbroglio. The sextuplet of Kalonzo Musyoka, who is the first among equals, Rigathi Gachagua, Fred Matiangi, Martha Karua, Eugene Wamalwa, and David Maraga doesn’t know whether it’s coming or going.
The other candidates are too diminutive to warrant a mention. Jeremiah Ngayu Kioni, he of the “sufuria” fame, and now comfortably ensconced as Jubilee’s Secretary General, has unsheathed his sword against Mr Gachagua. The man from Ndaragwa has accused him of being a mole. The moribund “opposition” has become a tower of babel. It’s no better than nonsense of stilts. Most endangered among them is Mr Gachagua. Legally, and politically, Mr Gachagua is dead.
In October 2024, Mr Gachagua was overwhelmingly impeached by the Senate following a similar vote to remove in the National Assembly. It was not even close. The charges for which he was culpable for the gross violation of the constitution included corruption, abuse of office, and ethnic splitism.
Deserved impeachment
These grave violations are the textbook defilement of Chapter Six of the constitution on Leadership and Integrity. Prior to his deserved impeachment, Mr Gachagua was an unapologetic champion of Mt Kenya exceptionalism and entitlement in Kenya’s body politic. In his public pronouncements as Deputy President, he often and repeatedly told Kenyans that the peoples of Mt Kenya were entitled to get the lion’s share of Kenya’s resources from the State.
In fact, in Mr Gachagua’s telling, Kenya was a company limited by shares. Those in the opposition who were at least half the country were not entitled to ask for, or receive, anything unless the State took pity upon them. These comments were so extreme that President William Ruto, Mr Gachagua’s boss at the time, termed them “primitive and backward.” But Mr Gachagua continued to run his mouth undeterred until he met his Waterloo in Parliament. What is shocking is that Mr Gachagua learnt nothing from his impeachment. Since being tossed, the man from Mathira has continued to inveigh against his colleagues in the “United Opposition” telling them that he, and he alone, will determine who among them will be the flagbearer in 2027.
That’s not all. In the more recent past, after playing coy for a while, Mr Gachagua has come out in the open to tell the presidential sextuplets that he’s now the most qualified person to fly the presidential flag. He’s told them that they can’t beat President Ruto because only he can by virtue of controlling the winning numbers in his Mt Kenya backyard. He’s told them to their faces, including his political superior Mr Musyoka, that he won’t be kingmaker when he can become the king. The pretense of unity in the “opposition” has collapsed with Mr Kioni attacking Mr Gachagua and Mr Gachagua’s acolytes calling Mr Matiangi, who is Jubilee’s presidential candidate a spoiler. Things have fallen apart.
Ineligible to run for President
Mr Gachagua has good lawyers. However, he needs to listen to them, and they need to tell him the bitter truth – he’s ineligible to run for President. This is how I see the legal deck of cards. Removal from office of a deputy president by dint of Article 150 of the constitution is a legal and political death penalty. It completely guillotines the culprit without any possibility of resuscitation. An impeached person politically and legally dies like a doorknob. A few lawyers are lying to Mr Gachagua that he’s not fully dead until the Supreme Court so pronounces his last rights and he’s legally buried six feet under. That’s bad legal advice. It’s a dog that can’t, and won’t, hunt.
The constitution doesn’t bar anyone from approaching the courts for relief. One of the greatest virtues of the 2010 democratic constitution, of which I was among the framers, is its liberal philosophy on access to courts. We wanted the courts to be the true guardians of legality. The same constitution doesn’t contemplate substantive relief from an impeachment of a President or his deputy by the Senate. The doctrine of separation of powers gives a nod to judicial review but doesn’t contemplate that an impeachment can be reversed or vacated unless it finds gross procedural unfairness. Because impeachment is a political process with the Senate as the final arbiter, unless there’s a clear violation of the constitution, all appeals must fail. In Mr Gachagua’s case, there’s none.
Mr Gachagua has been arguing that he’s eligible to run since he hasn’t exhausted all “available remedies,” especially a final ruling by the Supreme Court. This is wrong-headed. An impeached person or felon remains impeached or convicted until that sanction is lifted. It’s nugatory to argue one isn’t convicted or impeached until a successful appeal or review. Imagine if Mr Gachagua is elected and then the Supreme Court affirms the impeachment. Finally, Mr Gachagua is ineligible to run by virtue of Chapter Six.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. He’s Senior Advisor on Constitutional Affairs to President William Ruto. @makaumutua
