The National Assembly is working to seal loopholes that could be exploited to challenge impeachment proceedings against Deputy President Rigathi Gachagua in anticipation of a bitter legal battle should MPs approve the special Motion.
At least six issues have been isolated including public participation that Mr Gachagua has cited as a possible ground to challenge his likely ouster through impeachment in an anticipated legal battle that could go all the way to the Supreme Court.
According to him, a fair hearing by slotting time for his appearance before the House, ensuring the credibility of evidence by providing certified official records, the impartiality of the Speaker and how the final vote would be taken are other possible grounds that might form grounds for a court challenge hence pre-emptive action by the House.
The House appears to borrow from the landmark presidential election petition judgement in 2017 by Chief Justice David Maraga-led Supreme Court that nullified President Uhuru Kenyatta’s victory and ordered a re-run arguing elections were not only about numbers but that the process itself must be right.
“Therefore the process of getting a voter to freely cast his vote, and more importantly to have that vote count on an equal basis with those of other voters was as important as the result of the election itself,” the top judges ruled, an advisory that the National Assembly appears to be alive to by ensuring the conduct of the impeachment proceedings and the ultimate vote is solid.
The National Assembly has published an elaborate public participation program, one of the prerequisites that Deputy President Rigathi Gachagua had signalled he would use to challenge his imminent removal from office.
On Friday, the National Assembly will conduct public participation in all the 47 counties, led by lawmakers.
There will be parliamentary officers who will take the views of the public and a report will be submitted to the clerk's office.
"Public participation is important, it is unique. I hope we will go back to our constituencies, we will listen to them, we will inform them," said Dadaab MP Farah Maalim.
Mr Gachagua had expressed concern that it was unfair for him to be impeached by some 200 MPs when he and President William Ruto were jointly elected by at least seven million voters on the same ticket.
"We were elected by 7.2 million Kenyans. It is surprising to hear that about 200 MPs want to say that the leader elected by Kenyans is no longer needed," Mr Gachagua said in an interview with radio stations on Monday.
Mr Gachagua also urged parliament to include Kenyans who voted for him and the president to lead the country in the impeachment process.
"I am not trying to stop MPs from doing what they want, they are free to do what they want. My only prayer for them is that they should involve Kenyans through public participation. Let them go to Bomet and ask them if they want to send me home," Mr Gachagua said.
To meet this condition, the powerful House Business Committee at an urgent afternoon meeting on Tuesday night approved a nationwide public participation programme to be coordinated in all 47 counties.
Friday's public participation across the country necessitated the suspension of all parliamentary activities scheduled for this afternoon.
"This unprecedented event is one that requires the House to call all members to attend and participate in all activities related to the special motion," said National Assembly Speaker Moses Wetang'ula .
However, it is not clear how MPs will conduct the process and the threshold of people who should attend the scheduled sessions to qualify as public participation.
Article 118 (2) requires Parliament to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
"The constitution does not specify the threshold of public participation. I wanted your guidance on how this process will be conducted," Mr Kamket asked.
Having given the DP the opportunity to be heard as provided for in the Standing Orders, the House has given Mr Gachagua the opportunity to appear before it either in person or through a legal representative or both on Tuesday between 5 pm and 7 pm to defend himself against the charges levelled against him.
The right to fair administration and the right to a fair hearing are enshrined in Articles 47 and 50 of the Constitution respectively.
A section of MPs from Murang'a County had on Tuesday said it would be a travesty of justice if the House could proceed to impeach the DP without giving him a fair hearing.
In an attempt to provide tangible evidence of some of the allegations of gross violations of the Constitution, including the illegal acquisition of vast tracts of land, the evidence attached to the motion includes certified documents from the National Lands Commission and the Ministry of Lands.
Other allegations made against Mr Gachagua in the motion are also accompanied by sworn affidavits as required by law and the Standing Orders on the Admissibility of Evidence in Parliament.
For evidence to be admissible in Parliament, if it's from a government, it must be certified by a government official as legitimate information from that particular authority.
In 2022, Speaker Justin Muturi rejected evidence presented by former Wajir Woman Representative Fatuma Gedi to prove that then Deputy President William Ruto was a land grabber.
In his ruling, Mr Muturi said Ms Gedi's documents were inadmissible because they did not comply with the admissibility rules. The documents, which included newspaper clippings, photographs and a court judgment, were not authenticated.
The National Assembly is also racing against time, through the clerk's office, to translate the impeachment motion and the accompanying document into Kiswahili for all to read.
The move is to comply with Article Seven of the Constitution, which states that English is the official language of the country, while Kiswahili is the national language, so official documents can be made available in both languages.
Mr Wetang’ula's impartiality in the matter has also been questioned after he publicly supported the impeachment motion during a church service in Machakos on Sunday.
Marakwet West MP Timothy Kipchumba confronted the Speaker and his deputy over their neutrality on the impeachment motion, saying both had already taken sides on the issue.
Mr Kipchumba called on Mr Wetang'ula and Gladys Boss Shollei to recuse themselves from presiding over the motion and allow a panel of speakers to take over the process so that Mr Gachagua can be given a fair hearing in the House.
"We need to give the Deputy President a fair hearing, as we sit here, you are supposed to be a neutral arbiter in this matter. It is on record that you have made a statement or you are known to have taken sides in this matter. The same applies to the deputy speaker," Mr Kipchumba said.
In his defence, Mr Wetang'ula said he attended a church service where the readings were taken from the book of Mark chapter 9, "The book of Mark chapter 9 which says if there are wicked people in society, tie a big stone around their neck and throw them into the sea, it's not me who said that, it's the book. It also says if your right hand causes you to stumble, cut it off; if your left leg causes you to stumble, cut it off; if your left eye causes you to stumble, gouge it out; all I've said is that society should live that way," said Mr Wetang'ula.
"I am not conflicted in any way, I have no vote in this matter, I have no dog in this fight and I can assure you that the process will be conducted with fairness, the law, the constitution and the rules of natural justice," Wetang'ula added.
On the procedure followed by the motion before it was tabled, Speaker Wetang'ula said he was satisfied that it followed all procedures and met all the necessary constitutional and standing order requirements.
The Standing Orders of the House require the Speaker to consider the impeachment motion in terms of its form, the statement of grounds and the inclusion of the necessary evidence.
Standing Order 64(1) sets out the criteria for determining whether the proposed motion meets the requirements of the Constitution and the threshold at which the motion must be in writing, contain the grounds and particulars prescribed in Article 150(1)(b) of the Constitution and be signed in support by at least one-third of all members of the National Assembly.
"Having examined the proposed special motion, I note that the member has, in accordance with the requirements of Article 150 (1) (b) of the Constitution and Standing Order 64 (1A), stated 11 grounds for the removal of the Deputy President from office by way of impeachment," Mr Wetang'ula said.
The Speaker also said he was satisfied with the documents attached, including annexures and affidavits in support of the grounds stated in the special motion.
Despite the vacancies in four constituencies, the Speaker refused to reduce the two-thirds threshold, saying Article 145 (1) and (2) speak of all members, not existing members.
In his communication to the House, Speaker Wetang'ula noted that the special motion represented an unprecedented constitutional moment in the country's democracy.
"It undoubtedly calls upon this House to test for the first time under the 2010 Constitution the provisions of our Constitution relating to the removal of our Deputy President from office by impeachment," Speaker Wetang'ula said.
In the 6th Parliament, then Embakasi MP David Mwenje successfully led the House to pass a vote of no confidence in the then Vice-President and Minister of Internal Affairs, Josphat Karanja.
