High-stakes political lobbying, a mountain of evidence adduced by the National Assembly and the game of numbers settled the fate of former Deputy President Rigathi Gachagua in what became a tumultuous process that was full of twists and turns during his impeachment trial in the Senate yesterday.
With the trial moving towards its climax as the House waited for the DP to take the stand to make his defence, the exercise was thrown into disarray for hours after the former Mathira MP suddenly fell ill.
The unexpected development prompted Senate Speaker Amason Kingi to adjourn proceedings until 5pm to allow the DP's legal team, led by senior counsel Paul Muite, to locate their client, their sole witness in the trial.
Dropping the bombshell, the senior counsel informed the House that Mr Gachagua had been taken seriously ill and rushed to hospital and that he was therefore unable to reach the 59-year-old some minutes before 3pm.
The one-term MP was to take to the stand in defence for his continued occupancy of the second most powerful position in the country but even in his absence, something had to give.
Mr Gachagua's legal team walked out of the Senate precincts after a motion seeking to have the proceedings adjourned to tomorrow flopped.
Nonetheless, the marathon two-day impeachment trial was settled through a late night vote by senators, bringing to an end the long-drawn process.
The fate of the one-term MP depended on at least 45 out of 67 senators upholding any of the 11 charges facing him to end his troubled short tenure as the second in command; or a flat-out failure to hit the magic number in all the charges.
With the senators keeping their cards close to their chests during the trial, it was a wait-and-see game as the clock ticked towards voting time.
The titanic battle of sharp legal minds played out at the Senate as the pendulum swung both ways during cross-examination and re-examination of witnesses.
When Mr Gachagua’s turn came for him to take the stand to make his case, drama and confusion marred the proceedings, impeding the process for hours.
Mr Gachagua failed to appear before the Senate for the afternoon session with Mr Muite saying he had received information that the DP had fallen ill and had been hospitalised.
“We are anxiously waiting for the Deputy President. Let me make an inquiry as to where he is. We certainly want to call the witness,” said Mr Muite.
“The sad reality is that the DP has been taken ill and as I speak he is in hospital. My suggestion is that you give me the rest of the day to check on his situation and come back here at 5pm after you have seen him and spoken to the doctor,” he added.
Caught in a catch-22 situation, Speaker Kingi said that, being that the trial was a time-bound constitutional process, there were only two likely options out of the situation the House found itself in.
One of the options, Mr Kingi said, was to proceed with the trial without further reference to the accused. The second one was to adjourn the hearing to a later date to give Mr Gachagua another chance to testify.
When the House resumed at 5pm, Mr Muite asked that the proceedings be adjourned until Tuesday next week, saying, the DP was suffering from severe chest pains and needed complete rest for the time being.
“I was able to contact the doctors at the Karen Hospital who are attending to the Deputy President. Because of his condition, I was not able to speak to him directly on the instructions of his doctor. He said he needs to have complete rest for the time being. I have been informed by his doctors that he is currently suffering from severe chest pains,” Mr Muite said. While making his application, the senior counsel cited Article 145(6)(b) of the Constitution and asked the House to give the DP an opportunity to be heard in accordance with the dictates of a fair trial.
That section of the law stipulates that, if a select committee set up to investigate allegations of removal of a DP from office by impeachment reports that the particulars of any allegation against the DP have been substantiated, the Senate shall, after giving the DP an opportunity to be heard, vote on the impeachment charges.
“The provision doesn't have a time limit of 10 days. Give the Deputy President a few days until Tuesday to come and defend himself,” the lawyer said.
Lawyers for the National Assembly, however, called for the application to be struck out, saying the proceedings were time-bound and should continue as there was no guarantee that the DP would be able to appear before the Senate on Tuesday.
“The opportunity to be heard does not have to be oral. The rules of this House allow for parties appearing to be represented, to appear in person or to file documents,” said National Assembly lawyer Eric Gumbo.
“These proceedings are time-bound. It's not about the situation the DP finds itself in, it's about the Senate complying with the provisions of the Constitution that it must make a decision within a certain timeframe,” added Senior Counsel James Orengo.
The House had to adjourn for several minutes before resuming with a procedural motion to appoint Saturday October 19 as the final day to conclude the impeachment hearing, being the last day allowed by the Constitution.
Moving the motion, Majority Leader and Kericho Senator Aaron Cheruiyot rallied his counterparts to support it.
“I am sure he knows the 10-day constitutional provision but I don’t know why he wants this House to violate the Constitution or at least send us into a constitutional crisis,” said Mr Cheruiyot.
Seconding the motion, Minority Leader Stewart Madzayo said: “We are in a catch-22 situation but it is time we show empathy to the DP to have time to heal before we proceed with the case.”
But the last-ditch attempts to push back the proceedings failed, forcing the trial to proceed as had been planned.
The trial continued with lawyers Otiende Amollo (Rarieda), George Murugara (Tharaka) and Mombasa Woman Representative Zamzam Mohamed, in their closing statement, rallying the senators to make the decision to send Mr Gachagua packing.
After the closing statements from the parties, the Senate went into a 30-minute closed-session before a special motion allowing for debate after the resumption of an open session, culminating into the voting by the senators on each of the 11 charges.
Earlier in the day, explosive affidavits and witness statements from the National Assembly provided fodder for much drama during the proceedings as three witnesses from Mr Gachagua's accusers painted the man as unfit to hold high office.
On their part, Mr Gachagua’s legal team responded by poking holes into the evidence in a roller coaster ride of legal ping pong that continued for hours.
The DP was confronted with 11 grounds for his proposed removal from office by impeachment but the allegations that dominated the trial included his “shareholding” remarks, interference with the procurement process in regard to Kemsa’s Sh3.7 billion mosquito nets tender as well as money laundering and corruption charges.
Mr Gachagua stood accused of gross violation of the Constitution, including by promoting ethnic discrimination and undermining national unity through divisive public statements.
This is after the DP likened the country to a company with shareholders, insisting that only those who held shares, determined by how they voted in the 2022 elections, would benefit from government jobs and development projects.
The allegation of using his office to intimidate officials at Kemsa during the procurement process for the supply of mosquito nets stuck like a sore thumb during the session. Former Kemsa acting chief executive officer Andrew Mulwa gave a blow-by-blow account on how Mr Gachagua tried to interfere with the Sh3.7 billion tender while demanding for a return of a bid bond placed by a company — Crystal Limited — which was owned by his sons.
Mr Mulwa detailed how the alleged interference by the DP led to delays in distribution of the nets, loss of money and the firing of a principal secretary as well as the suspension of some senior Kemsa officials.
“I had never received a call from anyone above my minister and this was the first time I was receiving a call from the deputy president asking for a document that was under investigations by EACC. I felt coerced and I had to leave the business I was doing and go to EACC and sit for five hours waiting for them to discharge the bid bond. That explains the pressure I felt as a public servant,” said Mr Mulwa.
“This was a matter under investigation and for the DP to push for the return of the bid bond, he was interfering with the investigations,” he added.
Mr Mulwa was responding to a question by Kakamega Senator Boni Khalwale, who wanted Mr Mulwa to walk the House through the call with the DP.
Nominated Senator Esther Okenyuri on her part wanted Mr Mulwa to confirm if the DP indeed called him.
“This number you have put here is familiar to me. We used it when we were talking [with the DP]. Your evidence is so critical and we would like you to walk us through the conversation when the DP was pressuring you,” said Mr Khalwale.
Kibwezi West MP Mwengi Mutuse, the mover of the impeachment motion before the National Assembly, also sought to demonstrate how the DP was involved in a web of secrecy and conspiracy to allegedly commit crimes, including money laundering and corruption.
He questioned how Mr Gachagua’s wealth grew exponentially from Sh800 million before the 2022 elections to Sh5.2 billion on the strength of listed companies and properties associated with him. The MP argued that it was suspicious that the DP's sons are the directors in his late brother's property and not the dead man's children.
“We know all the tricks being played to hide ownership. I invite you to see the web of secrecy and conspiracy. These are white collar crimes done by clever people and sometimes it is hard to get evidence but in totality it points to money laundering and corruption,” said Mr Mutuse, adding that the scathing attack by the DP on the National Intelligence Service which he termed as failed, pointing to the incompetence of Director-General Noordin Haji.
“Imagine somebody was a member of al-Shabaab and the DP stands up and says the intelligence system has collapsed, wouldn't that be the right time to strike? That was the risk the country was put in,” he said.
However, the DP’s defence team argued against the allegations, saying the shareholding allegory was just a tool to explain the agreements signed between the various parties that form the ruling Kenya Kwanza Alliance.
“In law there is no secrecy when crime is committed or there is a violation of the constitution. The DP was just following the mentorship of the man who occupied the office before him and was not releasing any secrets,” said lawyer Tom Macharia.
Mr Macharia was responding to a statement by National Assembly lawyer Muthomi Thiankolu that the oath of office of the DP prohibits the holder of the office from disclosing matters relating to national security.
Ethics and Anti Corruption Commission deputy chief executive officer Abdi Ahmed Mohamud told the House that their investigations showed that serious procurement challenges, particularly the change of specifications to suit Shobikaa Impex Limited with a local agent known as Crystal Kenya Limited, affected the Sh3.7 billion Kemsa tender.
“This tender was badly handled and I don't want to say why but from the look of it, there must have been pressure from somewhere. There are two conclusions you can make being either the officers were bribed or there was pressure coming from somewhere,” said Mr Mohamud.
“We don't have any submission saying the DP influenced any tender. What we have is the connection between Crystal Limited and the DP. From the documents we have, it is clear the company directors are the two sons of the DP and that is the nexus between the DP and that particular company,” Mr Mohamud added.
Speaking to Nation yesterday, Dr Gikonyo of Karen Hospital confirmed that Mr Gachagua was recuperating there.
“He came in at 3pm. The family is aware I’m talking to you. He came in with chest pains. He is undergoing various tests. Right now he’s stable.” On recovery, the medic said: “We’ll observe him for the next 48 to 72hrs.”
