Speaker Kingi Issues Official Statement After Senators Kicked Out DP Gachagua in Absentia
Senate Speaker Kingi Issues Official Statement, that is his ruling on the impeachment of DP Gachagua in Absentia.
Senators voted to impeach H.E. @rigathi, Deputy President of the Republic of Kenya. Senators found him guilty on 5 out of 11 grounds brought against him by the National Assembly. Effectively, H.E. Rigathi Gachagua ceases to hold office.
Kingi’s Statement Read;
1. As you will recall, before the rise of the Senate at 1:15 p.m., the Senate had concluded the hearing of the case of the National Assembly. This included the evidence led by the National Assembly, including the calling of its witnesses who were examined, cross-examined by Counsel for the Deputy President and re-examined.
2. As the House adjourned, I directed that as contained in the Hearing Programme in this matter of the determination on the proposed removal from office, by impeachment, of His Excellency Rigathi Gachagua, EGH, Deputy President of the Republic of Kenya, on resumption at 2:30 p.m., the Senate would hear the case of the Deputy President for two hours, comprising examination-in-chief and re-examination, while the National Assembly would have a period of one hour and 55 minutes for cross-examination.
When the Senate resumed at 2:30 p.m., when the opportunity came for the Deputy President’s side to commence its case, Senior Counsel Paul Muite, Counsel for the Deputy President, informed the Senate that he did not know the whereabouts of his client and sought to be allowed a little time to establish where he was. Thereafter, he informed the Senate that he had learnt that his client had been taken ill. Asked how he proposed that the Senate proceeds. Counsel for the Deputy President requested for time possibly up to 5 p.m. to try to meet his client before advising on the way forward.
4. Counsel for the National Assembly, when asked to comment on the circumstances, argued that unfortunate as the situation was, this being a constitutionally time-bound process, it was imperative that pursuant to rule 11 of Part 1 of the Second Schedule to the Senate Standing Orders, the proceedings proceed. Rule 11 provides as follows-
Where the National Assembly or the [Deputy] President chooses not to appear before the Senate, that fact shall be put on record and the Senate shall proceed with its investigations without further reference to the National Assembly or the [Deputy] President, but the Senate may, for exceptional reasons to be recorded, permit a later appearance before the Senate by the National Assembly or the [Deputy] President.
5. It is also noteworthy that rule 12 provides as follows- Subject to these rules, the hearing of the evidence, once it commences, shall proceed and continue until the Senate concludes the hearing of the matter.
6. Following the representations made by Counsel for the parties, I suspended the proceedings of the Senate up to 5:00 p.m. to allow Counsel for the Deputy President to report the status of his client.
7. When the sitting of the Senate resumed at 5:00 p.m., Senior Counsel Paul Muite infomed the Senate that he contacted Doctors at Karen Hospital who were attending to the Deputy President. He further stated that owing to the condition of the Deputy President, he had not been able to access the Deputy President.
8. Senior Counsel then proceeded to cite Article 145(6) observing that although the Senate had opted to proceed by way of hearing the matter in plenary and while Article 145(6) provides for hearing of the matter by way of special committee, the provision obligates the Senate to accord the Deputy President “an opportunity to be heard” before a vote is taken on the impeachment charges. He further cited rule 11 of the Part 1 of the Second Schedule to the Senate Standing Orders, stating that in accordance with that provision, the Deputy President had chosen to appear and be represented in the proceedings.
9. Counsel for the Deputy President further submitted that the right of the Deputy President to be given an opportunity to be heard under Article 145(6)(b) of the Constitution is not limited by the ten-day timeline otherwise provided for in the matter.
10. In the end, relying on these provisions, Counsel for the Deputy President requested that the Senate adjourns the matter to Tuesday, 22nd October, 2024 to enable his client time to be attended to by his doctors.
11. In response, Counsel for the National Assembly, Mr. Gumbo, registered his sympathies to the Deputy President. On the one hand, he noted that the health matters are matters that are beyond human control. However, he noted that the matter at hand, was one that was governed by constitutional timelines. Counsel further indicated that Article 145(6) of the Constitution applied to impeachment proceedings in committee and was not therefore relevant to the present proceedings which had been convened by dint of Article 145(3) of the Constitution.
12. Counsel observed that the dates for the hearing had by Gazette Notice been set as 16th and 17th October, 2024. Counsel thereafter went ahead to observe that His Excellency the Deputy President had robustly participated in the proceedings by filing detailed responses to the allegations as set out by the National Assembly and through various submissions made in the course of the hearing, including cross-examination of the witnesses. Counsel then indicated that if any prejudice was to be suffered by the failure of the Deputy President to testify and be cross-examined, this would be on the part of the National Assembly which had the legitimate expectation of testing the evidence of the of the Deputy President through cross-examination.
13. Counsel then referred to the practice in the courts, including the Supreme Court, where parties are allowed to file their respective submissions and the advocates are then allowed to appear and highlight their submissions. Counsel urged that noting that the Deputy President had filed detailed responses and had had the opportunity to cross examine the witnesses of the National Assembly, the health status of the Deputy President and the constitutional timelines and borrowing the practice of the courts, the National Assembly was willing to forego the cross-examination of the Deputy President and requested that both parties be allowed to “highlight” their submissions during their closing statements.
14. Senior Counsel James Orengo had similar sentiments and cited Article 145(5) of the Constitution, arguing that the right to appear and be represented includes the right to be represented by Counsel. He urged the Senate that the greater duty was to comply with the Constitution and that the Senate could not accordingly go outside the timelines set out in the Constitution.
15. It is noted that the present hearing was convened vide Gazette Notice No. 163, Vol. CXXVI, dated 9th October, 2024. Vide that Gazette, I appointed Wednesday, 16th October, 2024, as the date for the commencement of the hearing and further that the hearing would run up to the conclusion of the hearing on Thursday, 17th October, 2024. As presently convened, therefore, today at midnight (unless midnight finds the Senate in the course of a division), marks the end of the period for the hearing of the present impeachment matter.
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