Jubilee’s deep-rooted divisions and the new-found alliance between the President and opposition leader have cost Kiambu Governor Ferdinand Waititu his seat.
The Senate on Wednesday night impeached the embattled county chief, who is also charged with graft, in a super-majority vote after a day-long session.
This was despite Deputy President William Ruto’s Tangatanga allies putting up a spirited fight to save the governor’s political career.
Waititu is the second governor whose impeachment was upheld by the Senate. The other was Embu’s Martin Wambora, who was later saved by a court ruling.
The Kieleweke faction ganged up with NASA and voted to uphold all the three charges against Waititu.
In charge one, gross violation of the Constitution, PFM Act and PPD Act, the senators voted 27 against 12. They voted 27 against nine in charge two (crimes under national law) and 27 against 11 in charge three (abuse of office).
The vote upheld the decision of the Kiambu county assembly which had impeached the governor on December 19 for gross violation of the Constitution, PFM Act and the Public Procurement and Disposal Act, abuse of office and conflict of interest.
Those who opposed the motion were Kipchumba Murkomen (Elgeyo Marakwet), Susan Kihika (Nakuru), Anwar Oloitiptip (Lamu), Mithika Linturi (Meru), Samson Cherargei (Nandi, Aaron Cheruiyot (Kericho), John Kinyua (Laikipia), Christopher Langat (Bomet) and Millicent Omanga (nominated).
The Tangatanga-leaning lawmakers protested Speaker Kenneth Lusaka’s decision to reject a plea by Waititu to file fresh evidence out of time. They said the county chief was not accorded a fair hearing.
Moving the motion, a visibly emotional and agitated Murkomen said the Senate did not have jurisdiction to prosecute the case because of the substantive matter of quorum in the assembly raised by the governor.
“The counsel for the governor raised a fundamental question, did the assembly meet the constitutional two-thirds majority, in fact during the cross-examination, it was revealed that it was not met,” he said.
Murkomen accused his colleagues of playing to the gallery instead of defending counties and county governments. “Whereas other decisions we make politically, I hope the decision we will make today will be for posterity,” the senator said.
“We must put weight on the documents and evidence supplied by county assembly. If the charges and evidence lead to a conclusion we will acquit, we will do so without any apologies, but not the political inclinations that we are being whipped to support.”
Minority leader James Orengo led NASA and Kieleweke senators in supporting the impeachment motion.
The Siaya senator said Waititu’s lawyers failed to file a response to the charges levelled against Baba Yao, despite having more than one month to do so.
“There was no rebuttal on the allegations and evidence on the side of the executive or the defence,” Orengo said.
Makueni Senator Mutula Kilonzo Jr said, “It is extremely serious that a matter of such magnitude has been handled casually by the governor’s people. It is very casual that the lawyers of the governor did not find it fit to file an application with your [speaker’s] office.”
Senator Kihika, also the Majority Chief Whip and a confidant of the DP, accused her colleagues of rubber-stamping the motion to remove the governor.
“There was no evidence that the threshold of two-thirds was met in the county assembly. It is our job and duty to ensure the process was proper,” she said.
Earlier in the day, Waititu rubbished all the charges and put up a spirited fight to save his job and political career. He put forward a passionate appeal to the senators not to consider politics and propaganda in Kiambu in deciding his fate.
“It is very unfair for someone who has worked hard. It’s ungodly for me, who has worked hard, to be removed just like that, unceremoniously maybe because I am not in your politics right position,” he said.
“Who knows? We have been changing parties, nobody knows what will happen. So you cannot judge a politician from what was happening last week or yesterday. So I beseech you, don’t judge me on what happened or what is prevailing now. Please handle my case like any other case.”
His team of five lawyers said the county assembly had breached the Constitution and other laws during the impeachment and poked holes in the charges advanced against him.
The lawyers urged the senators to reject the application, arguing that the removal process was flawed. They said there was no requisite number of MCAs in the chamber when the motion was passed on December 19, contrary to the county assembly’s Standing Orders.
They also submitted that the assembly prosecuted the governor’s impeachment for more than 14 days.
“The Senate must consider the process that the motion went through in the county assembly. The assembly did not provide a list of members who voted in favour of the motion,” lawyer Charles Njenga said.
Lawyer Peter Wanyama, also acting for Waititu, questioned Speaker Kenneth Lusaka’s decision to convene the House 28 days after Waititu’s impeachment by the assembly.
Section 33 of the County Government Act requires the speaker to summon a sitting within seven days of receipt of a resolution of a county assembly.
“Article 187 of the Constitution and Section 33 of the County Government Act have been cast in stone and it doesn’t give the Senate any digression whatsoever,” Wanyama said.
Lead lawyer Ng’ang’a Mbugua discounted the evidence adduced by the assembly to firm up the charges against Waititu. He said the assembly did not carry out public participation, contrary to the Standing Orders.
The MCAs had accused Waititu of influencing the award of lucrative tenders to companies associated with immediate family members and close relatives.
Further, they alleged that he facilitated the irregular transfer of 0.135 hectares on the January 29, 2018, to Esther Wamuyu Nyatu, Waititu’s wife and mother of his children.
They claimed the governor dispossessed Cecilia Njoki Mbugua, a widow, of two prime plots in Thika.
The plots, Thika Municipality/Block XI/877 and Thika Municipality/878, were part of the widow’s inheritance from her deceased husband. The Ombudsman investigated the matter and recommended to DCI and EACC to probe the governor.
Further to this, the governor has hired more than 600 casuals without the involvement of the Public Service Board, the MCAs said.
Upon realising that he had broken the law, it is alleged that he caused all the said staff to be fired exposing the county to risk of multiple suits and loss of public funds
Ng’ang’a said the governor does not play any role when it comes to accumulation of bills. He added that pending bills is not an impeachable offence.
“You were not told the role the governor played in the alleged award of tender. Does the governor evaluate tender? Did he award tender? In what way did he directly award tender?” he posed.
But the county assembly’s legal counsel Mbuthi Gathenji deconstructed Waititu’s submission, saying what the senators were treated to was criticism of evidence adduced by the applicant.
“Every case will be determined on its on merit. We are at the era of zero tolerance to corruption. The Senate should make its verdict based on this era,” Gathenji said.
It was the submission of the county assembly that although pending bills is an issue affecting nearly all the 47 counties but should be prosecuted separately.
“My learned friends have alluded that pending bills is a problem of all Counties. It’s like, we have all sinned but we will hang separately,” he said.
His colleague Nani Mungai urged the House to disregard the allegation that there was no quorum, adding that there is no law that requires the County Assembly to submit a list of members who voted on the impeachment day.
On the issue of timeliness, Mungai cited Kiambu county assembly Standing Order 84 (5) states that a motion will be introduced and can only be prosecuted within seven days.
On alleged land fraud, Mungai reckoned that the Ombudsman recommendations is binding. He cited the Court of Appeal ruling in case of CAJ vs Vision 2030, where the court held that Ombudsman resolutions is binding.