Secretary to the Cabinet Mercy Wanjau (left), former acting Kemsa chief executive Andrew Mulwa, Nairobi Governor Johnson Sakaja and Deputy President Rigathi Gachagua.
Deputy President Rigathi Gachagua will face his accusers when the National Assembly debates his impeachment motion on Tuesday.
Kibwezi MP Mwengi Mutuse, who sponsored the motion cites grounds for impeachment as stipulated in Articles 150 and 145 of the Constitution. He will also line up three witnesses, including a state officer who sits in the Cabinet, as he seeks to have Mr Gachagua dismissed as DP.
Mr Mutuse cites 11 grounds, has sworn an affidavit and annexed documents and three other affidavits in his bid to have Mr Gachagua impeached.
The impeachment motion was supported by 291 MPs. Mr Gachagua has come under fire from his Kenya Kwanza Alliance colleagues in recent months.
He says his only crime is being “truthful” and pushing for the unity of Mt Kenya.
Mr Mutuse has attached affidavits from Secretary to the Cabinet Mercy Wanjau, Nairobi Governor Johnson Sakaja and Dr Andrew Mulwa, the former acting Kenya Medical Supplies Agency (Kemsa) chief executive.
The witnesses will testify on claims of gross violation of the Constitution, abuse of office and gross misconduct.
The cases relate to conflict of interest, breach of collective Cabinet responsibility and interference with the separation of powers.
Mr Mulwa was appointed Kemsa boss in an acting capacity in 2023 following the corruption scandals that rocked the state agency.
In his affidavit, he claims to know the issues raised in paragraphs 45 (j) and 78 (c) (grounds 7 and 11) of the impeachment motion.
“In the last two years, the DP has inexplicably amassed a huge property portfolio estimated at Sh5.2 billion, mainly through corruption and money laundering,” reads ground seven by Dr Mutuse.
He says the value of the property and assets acquired by Mr Gachagua in the said period is inconsistent with his known legitimate income of about Sh24 million through his sons – Kevin Rigathi and Keith Ikinu Rigathi – and other close family members and associates.
Dr Mulwa says he is competent enough to give evidence because of his former role at Kemsa.
“Gachagua was involved in the irregular procurement of Kemsa’s Sh3.7 billion malaria nets,” he says.
Dr Mulwa says on or about July 11, 2023, the DP called – to hand over to his agent the original bid bond submitted by Shobikaa Impex Ltd for the tender.
“Given the status, power, threats and influence of the people involved in obstructing the investigations and covering up the irregularities surrounding the procurement, I was compelled to hand over the original bid bond to Ogora Wilson Okula,” he says in the affidavit.
“As a junior government official, there was not much I could do against a Deputy President.”
In a June 30, 2023 letter, Dr Mulwa responded to a June 12 letter by Shobikaa Impex Private Ltd CEO regarding a request to release the tender bond.
“We wish to inform you that the subject tender is under investigation and documents relating to this tender are not in our custody. However, we have written to the Ethics and Anti-Corruption Commission to release the original bid bond to facilitate your request,” the letter says.
Mr Mulwa accuses Mr Gachagua of harassing public officers in contravention of Section 34 of the Leadership and Integrity Act.
Ms Wanjau will give evidence in her capacity as Secretary to Cabinet and custodian of the content of Cabinet resolutions and policy positions.
“I have knowledge of the issues raised in grounds 2 and 10 of the application,” she says.
Ms Wanjau adds that on April 30, 2024, the Cabinet adopted a resolution/policy on “Nairobi Rivers Regeneration and Flood Mitigation” and circulated it to relevant Cabinet Secretaries, Principal Secretaries and government agencies, including the Office of the DP, for implementation.
She says the resolution/policy directed the immediate mapping of the Nairobi Rivers Corridor and the establishment of a 30-metre statutory riparian boundary as well as the 60-metre planning corridors on both sides of the rivers.
The mapping was to be done by the Ministry of Lands, Public Works, Housing and Urban Development, the Nairobi County government and the Water Resources Authority (WRA).
The role of the three entities, according to the affidavit, was to approve the removal of existing structures/buildings along the 30-metre riparian zone within the identified flood hotspots from May 2, 2024.
This included an approved plan for shifting people from the danger zones along Mathare, Nairobi and Ngong Rivers, and an approved cash transfer to facilitate alternative accommodation for those affected.
The meeting directed the WRA to enforce the 30-metre statutory riparian boundary.
In addition, the Office of the DP and CSs of Interior, Environment, Public Health, National Treasury, Lands and the Attorney General and relevant Ministries, Departments and Agencies were to take appropriate action.
Governor Sakaja has also sworn his affidavit on the planned shifting of Wakulima market traders.
The county boss has an axe to grind with Mr Gachagua, citing Article 10 (2) (a) of the Constitution, which states that devolution is a fundamental national value and principle of governance.
He says the Constitution provides that county and national governments are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.
Governor Sakaja says that on September 20, Mr Gachagua – “in reckless disregard of the high calling and dignified status of the office of the DP, unlawfully interfered with the running of the county by holding a rally and inciting citizens against lawful directives in the planning and management of markets”.
He says the DP had previously used ethnic incitement to interfere with the county government’s management of traffic in Nairobi.
“I believe that Mr Gachagua’s inciting and demeaning public statements and conduct are impeachable offences. They undermine devolution, the functional and institutional integrity of county governments and unjustifiably denigrate and ridicule the leadership of county governments,” the governor says.
He notes that the DP's inflammatory public statements are annexed to Ground 3 of the application.
"I sincerely believe that Mr Gachagua's inciting and demeaning public statements and conduct are impeachable offences to the extent that they undermine devolution, undermine the functional and institutional integrity of county governments and unjustifiably denigrate and ridicule the leadership of county governments, particularly the Nairobi City County Government," he states and attaches his evidence.
Mr Mutuse is expected to move his private member's motion on Tuesday, backed by evidence to substantiate his plot to remove Mr Gachagua from office on allegations of corruption, nepotism, tribalism among others.
In his affidavit, the first-term MP reveals that he started gathering and collating evidence to support the motion on his own initiative on September 20.
He argues that his action was inspired by complaints about the DP's supposed persistent discreditable and dishonourable acts and omissions over the past two years, each and every one of which amounts to gross violation of the Constitution, gross violation of national laws and gross misconduct over the past two years.
"I downloaded the videos referred to in the application from the internet using an HP desktop.... The videos are in the public domain as several television stations with national coverage recorded the relevant events," Mr Mutuse argues in his affidavit.
Mr Mutuse further alleges that DP Gachagua's violation of the Constitution and laws of Kenya and his misconduct is a matter of public record.
"In signing this affidavit, I have verified the authenticity, accuracy, availability and downloadability of the videos from the World Wide Web," the affidavit reads, adding that he believes the videos accurately and verifiably depict Mr Gachagua's public utterances on the various occasions alluded to in the motion.
He has now asked Parliament to treat his affidavit, CR12, as a certificate for the purposes of Section 106 (B) of the Evidence Act and all other legal requirements governing the admissibility of photographic and electronic evidence.
