Lawyers representing the National Assembly now want the impeachment proceedings against Deputy President Rigathi Gachagua at the Senate to continue despite the physical absence of the country’s second-in-command from the House.
This as DP Gachagua was reportedly taken ill after suffering intense chest pains and rushed to the Karen Hospital for treatment on Thursday, according to his lawyer Senior Counsel Paul Muite.
Muite hence requested the proceedings to be adjourned until Tuesday next week to allow the DP to undergo proper medical care, and thereafter take to the witness stand and present his defence in the impeachment proceedings.
However, lawyer Eric Gumbo representing the National Assembly, argued that Gachagua is not obligated to physically present his defence on the floor of the House, but can rather appoint someone else – including his advocate – to do it for him, or just file documents.
According to Gumbo, the witness statements and documents already provided by the DP when the impeachment came up for hearing both before the National Assembly and now the Senate are sufficient enough to be adopted by the House.
The advocate went ahead to note that proceeding with the hearing in Gachagua’s absence will, as a matter of fact, not affect the DP as much as it will the National Assembly legal team since they will not have the opportunity to cross-examine him.
“The opportunity to be heard does not have to be oral; the rules of this House permit that parties appearing could elect to be represented, come in person, or file documents. The Deputy President has participated robustly in the proceedings, both before the National Assembly where they filed a very detailed replying affidavit and response,” said Gumbo.
“If my memory serves me right, the Deputy President filed a response dated October 8, 2024. When the proceedings before this House began, the Deputy President again filed a very robust response dated October 12, 2024. Upto this point in time, the Deputy President together with his team have had a beautiful opportunity to present their case.”
He added: “They’ve had an opportunity to cross-examine in great detail all the witnesses that we presented before this House. If anything, if any prejudice were to be occasioned in this matter, it would be on us, because our expectation would be that the Deputy President would be able to attend and avail an opportunity for the National Assembly to cross-examine him.”
Lawyer Gumbo also noted that since Gachagua is reportedly hospitalized in critical care, it is not a guarantee that he will be out of the woods and able to present himself before the House on Tuesday as requested by his counsel.
“Taking into account the circumstances that we find ourselves in, having also very keenly heard Senior Counsel Muite speak, matters health are not matters to be taken lightly. On the same tone, matters health cannot be given timelines; there cannot be certainty that if an adjournment were to be given even for one week, then there’s certainty that we may be able to proceed on that assigned day,” he stated.
“On our part, the part of the National Assembly, so that we’re able to give progress to this matter, we’re willing to take the painful decision to forgo the cross-examination of the Deputy President and only proceed with highlighting submissions in relation to the documents we have filed in this House.”
Gumbo further noted: “Let me end by drawing the attention of this court to rule 12 of the rules governing the proceedings currently underway. It dictates that once the hearing has commenced, it shall proceed upto the end. It does not provide for an option for the House to adjourn.”
Senior Counsel James Orengo, also representing the National Assembly, reiterated Gumbo’s remarks stating that despite looking forward to cross-examine Gachagua, he is willing to take the loss in stride if the proceedings continue due to the nature of the matter.
He however poked holes into Gachagua’s reported hospitalization, stopping short of accusing the DP of feigning sickness as he questioned why his legal team did not avail to the House medical records to back up the claim of falling ill.
“If in accordance with the Election Law you’re required to subscribe your nomination papers on a certain day, and you fail. You’re running for President or DP and you’re told that you must present your nomination papers on a certain day as it is there in the law, would you feign sickness and fail to present your nomination papers? And I can tell you, if you fail to do so, the law will not give you any accommodation,” said Orengo.
“Even that medical evidence that he’s been admitted to a medical institution, we don’t have it. I think what the DP should’ve done, we should’ve had one of the doctors here so that they tell us about his admission and condition. Because upto 1:15pm, the DP was here, he was not evacuated from here in an ambulance
DCJ Mwilu: Gachagua’s impeachment case will be handled according to the law
Deputy Chief Justice Philomena Mwilu has said that if Deputy President Rigathi Gachagua’s impeachment process goes back to the courts, the judges will follow the process outlined in the constitution.
