Tuesday, 7th November 2023

Clerk, do we have quorum?

Serjeant-at-Arms, kindly ring the Quorum Bell for 10 minutes.

Serjeant-at-Arms, proceed to ring the Bell for a further 10 minutes.

Serjeant-at-Arms, we now have quorum. Kindly stop the Bell.

Hon. Senators, kindly take your seats.

I do solemnly swear---

Senate Majority Leader, you will exchange greetings much later. Hon. Senators, kindly take your seats.

Order, hon. Senators. Sen. Olekina, kindly take your seat. Senate Majority Leader, you should be helping the Chair to bring calm in the House.

Clerk, you may proceed to call the first Order.

Hon. Senators, you will recall that at the Sitting of the Senate held on Thursday 2nd November, 2023, I appointed Tuesday 7th and Wednesday 8th November, 2023 as the days when the Senate will hear the charges for the proposed removal from office, by impeachment, of Hon. Kawira Mwangaza, the Governor of Meru County.

Subsequently, a Procedural Motion for the alteration of the sitting time of the Senate for Tuesday, 7th and Wednesday, 8th November, 2023, to facilitate the impeachment hearing against the Governor of Meru County was considered and approved by the Senate on Thursday, 2nd November, 2023. Consequently, a hearing programme has been prepared and appended to today’s Order Paper.

Hon. Senators, as is the tradition, and in line with the schedule of activities for an impeachment hearing in Plenary, the Senate will hold a closed preparatory session to discuss the management of the investigation. This is aimed at ensuring that the process is conducted seamlessly and concluded timeously in line with the requirements set out under the County Governments Act and the Senate Standing Orders.

I now, therefore, direct that all members of the public including the media, to withdraw from the Galleries and any form of broadcast from the Chamber to cease forthwith. The open session and hearing will thereafter commence at 11.00 a.m. as per the hearing programme.

I thank you. You will signal, so that we proceed with the session. Once the media is out and there is no broadcast, you will let me know.

Serjeant-at-Arms, kindly, ring the Bell for five minutes to allow Senators to settle in.

Hon. Senators, kindly, take your seats. Sen. M. Kajwang’ and your team settle down. Order, Senators. Kindly proceed to take your seats. Sen. Wafula, take your seat, we need to make progress. Sen. Nyamu and Sen. Wafula, take your seats. Hon. Shakila, proceed to take your seat.

Sen. Madzayo and Sen. Omogeni, I will allow you this time around to take your seats while I am on my feet.

Thank you.

Thank you. I now similarly invite counsel for the Governor to introduce the legal team representing the Governor and the Governor by stating the full name and designation of each person.

Thank you, Mr. Speaker, Sir. My name is Mr. Elisha Ongoya, the counsel leading the team of the Governor. Other counsels appearing alongside me in this matter are-

Sen. Faki, please, take your seat.

On behalf of the Senate, I welcome the County Assembly team, the Governor’s team, members of the public and the media to the Senate and to these proceedings today. I invite the Clerk to read the charges against Hon. Kawira Mwangaza, the Governor of Meru County.

Thank you. You may proceed to take your seat, Hon. Governor.

Next is opening statements on behalf of the County Assembly. Counsel, you have exactly 30 minutes. Anything said after 30 minutes will be off record and may not be useful to your client.

After we moved from this Senate, even though the Senate dismissed the charges, it gave the Governor many pieces of free advice and lessons on how to run the county. After we left here, there was a brief honeymoon of peace in Meru lasting only a few weeks. This honeymoon was characterised by courtesy calls from various leaders pledging in public to support the Governor and promises by the Governor that she would turn over a new leaf and Meru would lastly be peaceful, orderly and running in accordance with the Constitution.

When we came here, I recall prefacing our presentation with a story of a leader in Europe who that time we were telling you, had waged wars on all four directions of the compass, including North, South, East and West. On each direction, this leader was at war with another country and another civilization for no good reason.

Today, we preface the Motion before you with yet another allegory from Europe about prodigy of a man from Russia called Kondraty Ryleyev. This was a multi-talented Russian citizen who was a poet, publisher, oralist, and military officer. He was an embodiment of all the nice things a single man can achieve in a single lifetime. He was implicated in a treasonable act called the Decembrist Uprising of 1825 in Russia, which sought to depose the Russian Monarch. Those days the monarchs were called ‘Sirs’ from office.

After he was convicted of these offences, he was sentenced to public execution by quartering. This is a method of execution that involved tying the four limbs to a horse and the horse is driven in different directions or cutting the body in four pieces and exposing the bowels.

Pleas were made to Sir. Nicholas who was the Monarch, that this was too macabre method of execution. Even though the sentence could not be vacated, the King was implored to impose a more humane way of execution. The king agreed that Kondraty Ryleyev could be executed by hanging which, I think is the method in our laws for executing people.

On the day of execution and in those days, executions were done in public stadiums like Nyayo Stadium full of people and spectators. So, on the day of execution, this gentleman was led to the gallows, crowd watching in the full stadium. He was supposed to fall so that your neck breaks and he dies--- The rope broke and Kondraty Ryleyev fell to the ground. After a few seconds of dizziness, he dusted himself, addressed the gathering telling the crowd, “You see in Russia, they do not know how to do anything properly. They do not even know how to make a rope.”

We are submitting that by the Governor persisting in the very series of misconduct that brought us here one year ago, the only change being these particulars, she is telling you, you see in Kenya, the Senate does not know how to do anything properly, including impeaching a rogue Governor.

Anyway, after this guy fell to the ground, in Russia this was considered a message from the gods that they did not intend the prisoner to be executed. The King was allowed to grant a pardon if this type of miracle happened. So, a messenger was sent on horseback to the Monarch in a large white horse to tell him about this miracle and request him as was the custom in Russia, to sign the pardon.

Indeed, the Monarch began drafting the pardon and just as he was about to sign it, he asked the messenger, by the way, did Kondraty Ryleyev say anything when this miracle of breaking of the rope in a public hanging occurred? The messenger told the King, ‘Yes, he said, in Russia, they do not know how to do anything; not even how to make a rope’. The Monarch said in that case, let us prove the contrary. He tore the pardon and directed that the execution be repeated the following day. This time, the rope did not break marking the end of the sad story of Kondraty Ryleyev, the Russian poet, singer, military officer and many other things.

Why do we tell this story? We will be presenting evidence before you and even as the charges were read, you heard the Clerk say several times, these issues were alive in the previous proceedings. What happened? The Governor after the brief few weeks of camaraderie, adopted a defiant stance in which she has it even in her own evidence, of several public rallies defiantly telling whoever cared to listen, kaende kaende, kabati kabati. Kaende kaende is sheng; it is Nairobi’s slang for ‘I do not care, whatever will be, will be, I will do what I do’.

In Swahili, they say, ‘na liwe liwalo’. That is the meaning of kaende kaende. We will be showing you how, throughout the last one year, even after the graceful lessons from Senator Tobiko, I recall, and the other Senators, the Governor’s mantra in persisting on this series of misconduct is, ‘I do not care, whatever will be, will be que sera que sera’. She does not care about the consequences, the future and what not.

That is why we have come before you with the Motion arranged under the seven thematic counts, setting out 39 specific forms of gross violations of the law and the Constitution and which, in our humble submission, are conduct unbecoming of any leader. We expect and it will happen, although I am not a prophet, just like last time, the Governor will appear on this podium taking the posture of an innocent and vulnerable victim of toxic masculinity, harmful patriarchy, gender stereotyping and political schemes. That is what her response tells you.

It is back to ‘It wasn’t me’ by Shaggy. If you want to confirm it, at page two of her response she tells you, this Motion should not be here, it is a scheme of her deputy who is power hungry to take the governorship through the backdoor. She tells you, it is the Njuri Ncheke, she tells you, if her own officials, secretary, chief of staff has done anything wrong, even on the things she acknowledges, she says, they bear their own responsibility, it was not me.

In short, she will come to you looking as meek as a lamb. Luckily, we have lived through the experience, our message to the Senate, if you acquit her this time, she will walk out of this door, and it will be kaende kaende, que sera que sera, whatever will be, will be, I do not care na liwe liwalo and Meru will be back to perpetual endless crisis that has engulfed it for a year.

We will be showing you that the Governor has made several admissions before the county assembly. What we find strange is that now in her response to you, she produces documents she failed to produce before the Assembly. We will be able to show you beyond any shadow of doubt that those documents are forgeries.

In conclusion, so that my learned colleague takes the remaining bit, just like last time, Mr, Speaker, Sir, we are telling you not to fall for the looks. If you see a humble

meek, polite looking governor, it is because the occasion of the day requires that you look meek, humble, vulnerable and what not. However, if you make the mistake, this time round, it will be que sera, sera (whatever will be, will be). I do not care, kaende, kaende. That is what she will do.

For those reasons, for purposes of my part, we are asking you to borrow from Nicholas I of Russia in 1825/1826, to prove that the Senate of the Republic of Kenya can actually do things properly by impeaching a rogue governor.

I leave the Floor to my learned colleague, Mr. Mari Maranya.

Thank you, Mr. Speaker, Sir, and the hon. Members of the Senate. My name is Mari Maranya and for the interest of time, allow me to jump right into it.

I will start by setting out the mandate of the Senate, as has been clearly set out previously by the Apex Court. The Court of Appeal in Wambora's case, as well as the Supreme Court in the Sonko’s case, set the mandate of this House clearly. Its role is to investigate and confirm that there exists sufficient evidence to substantiate the allegation made against the governor. Therefore, the Supreme Court noted that the Senate does not see it as an appellate forum. Theirs is a single role that is to investigate and confirm that the allegations, as well as the evidence that has been adduced by the Senate, is substantiated.

We have gone ahead to state that impeachment proceedings are not in the nature of criminal proceedings. They are not proceedings to establish culpability or criminal culpability against the Governor. However, the court has stated that the impeachment proceedings is all about accountability, political responsibility and political governance.

As a result of that, we have set the standard of proof. Unlike in criminal cases where the standard of proof is beyond reasonable doubt, in the impeachment proceedings, it is not required to prove beyond reasonable doubt. Indeed, the Senate went ahead and stated that the proof is way below beyond reasonable doubt, but slightly above that of a balance of probability.

Mr. Speaker, Sir, in the fullness of time, we shall produce evidence upon your leave to call evidence to prove that the Governor has failed or breached the political responsibility. She is in breach of accountability and political governance in a manner that warrants her impeachment.

We shall again demonstrate to this honourable House that the conduct of the Governor, over time, over the one year she has been in office, has not been beyond reproach as is required.

The conduct of a state officer should be beyond reproach. Indeed, it is likened to that of a Caesar’s wife, but instead or to the contrary, the Governor has behaved in a manner that has been construed by this House as well as the court to amount to an impeachable conduct. We shall demonstrate that one upon the opportune time when we shall be required to call witnesses as well as to adduce evidence.

We shall demonstrate that the Governor, once a pedigree person, has disastrously turned tragic and has been likened in Meru County to King Saul.

We shall demonstrate that the relationship between the Governor and the people of Meru, the relationship between the Governor and the leaders of Meru, both elected,

political and non-political, her relationship with women organizations in Meru, and all actors, including the informal government called Njuri-Ncheke and all other leaders, including her deputy, has irretrievably broken down. Therefore, there exist irreconcilable differences between the Governor and everybody, all actors within Meru. We shall demonstrate that one clearly when we will have a chance to adduce evidence.

We shall also demonstrate to you in the fullness of time, how the Governor has placed the county resources that is appropriated by this honourable House to Meru County, under the domain of her relatives. That is a relative with very close blood consanguinity, that is sister, brother, for one reason, which is to plunder it.

We shall demonstrate how Meru County is having a very high prevalence of cancer. It is even said that we top not only in the country, but the entire world For quite a long time, Meru has been leading in cancer.

The county got an opportunity from an international well-wisher where they sent us a group of technical persons in terms of cancer treatment to come and partner with us. They were to inspect the cancer treatment machines for purposes of equipping Meru Cancer Treatment Centre.

The Governor was audacious enough to get clearance from the Ministry of Devolution. You will be surprised that instead of getting for the oncologist, the radiologists serving within the Cancer Centre in Meru was audacious enough to put into the flight her sister, brother and brother in law, to go for two weeks in China and be frolic of themselves.

This is an opportunity that we lost as a county to equip the only cancer centre that we have in Meru. We shall demonstrate that at the opportune time. That is not even shocking enough as the letter that was sent to the Ministry of Devolution as well as to the Chinese Embassy, read:-

“The following persons; (a clear case of misrepresentation) are technical persons matters of cancer.” Yet for most of them, their education qualification cannot be accounted for.

The most educated in that team of sisters and brothers was one holding a Diploma in Pharmaceutical Technology. That is an assistant to a pharmacist and even a pharmacist is not qualified in that. Remember, this is done while leaving out qualified oncologists, radiologists and all manner of experts in relation to cancer treatment.

We shall demonstrate to you, at the opportune time, how the Governor has employed eight extra chief officers without an approval of the County Assembly, at all. It is like the President appointing a Minister and not subjecting them to the National Assembly for approval.

Most of these chief officers are completely unqualified. They do not even have the minimum academic requirements. We shall demonstrate that when we will be allowed to call evidence on how the Governor has used our Okolea Programme to swindle Government money.

We shall demonstrate, at the opportune time, how Government vehicles have been staged to pursue the Okolea Programme, which is a programme not meant to help people, but vilify leaders and other persons who it is assumed should not to be raising any issue.

We shall demonstrate, at the opportune time, how the Governor has used her sister and brother to swindle the Government money. Just a cursory look at it, Kshs78 million going to an individual in the name of prepayments, where her sister would hold eight imprests in one day. We shall demonstrate that when we will be required to call evidence.

Mr. Speaker, Sir, we shall also urge you, that the Governor in front of you is not a first-time offender. Indeed, she is a repeat offender who does not require of deserve the favours of this court.

I will also reiterate the role of Senate as far as the devolution is concerned. Honourable Senate, you spend a whole lot of time to pass budgets for the interest of counties and devolution, only for it to be placed at the disposal of sisters or relatives for purposes of plunder. You have a sword and you are the custodian of devolution. You cannot lie down for long. You will spare the rod and the child will be spoilt.

Mr. Speaker, Sir, we shall be asking you to crack the whip against the Governor for the interest of Meru. You will be faced with two competing interests. The first is for devolution to work in Meru for the interest of Meru and secondly, to help the Governor save her private job. The good thing is that you will be confronted with public interest against her private interests. Kindly, save the Governor, sorry save Meru at the expense of saving the Governor.

My apologies Mr. Speaker, Sir.

We shall demonstrate how a certain work ticket has been used to account for 17 imprests and has been used 17 times. The same registration and serial number have been used 17 times and we shall give this evidence when called upon. We shall also demonstrate how the work tickets that have been used do not follow the natural chronology. It is indicated that on 7th October, the Governor went to Nairobi. The next one that follows is for 10th October and the one after is for 4th April. You wonder whether the Governor returned the access bag some months ago.

Mr. Speaker, Sir, that is a clear demonstration of forgery. You will look at some documents and you will realise that she has zero defence. She only has a mere counter- claim. She is asked why she stole Government money and she says it is Njuri Ncheke. She is asked why she stole this one, she says it is Hon. Mpuru Aburi. She is asked why she usurped the powers of the County Assembly, she says it is the Deputy Speaker. You ask this one, she says ooh that, instead of clearly saying that she has not done anything and giving the evidence to that effect.

I remember I was taught by Sen. (Prof.) Tom Ojienda, SC, that if you decide to answer a wrong question other than the one that was asked, you should try and answer it correctly. Instead, the Governor did not address those claims. In her defence, she produced her own counter-claims in form of a Motion to impeach. She answered that claim wrongly. That is a double jeopardy. You get the question wrong and you answer it wrongly.

Mr. Speaker, Sir, because of the interest of time, we shall adduce all the evidence in respect to the matters we have raised.

I thank you.

Thank you. Next is the opening statement on behalf of the Governor. Counsel, you have 30 minutes. At the end of the 30 minutes, the microphone will go off. Anything you say after that will be off record and of no use to your client.

Thank you, Mr. Speaker, Sir and distinguished Senators. My name is Elisha Ongoya for the record. It gives me great pleasure to address you representing the Hon. Kawira Mwangaza, the Governor of Meru County.

We find it necessary to open our remarks by reflecting on the wisdom that informed the framers of our Constitution in prescribing a two-tier process of removal of a governor from office. This case has taught us that the framers of this process were, indeed, wise. I say this because this House occupies a higher quasi-judicial pedestal in these proceedings for three reasons.

The first one is that in this House, the accuser, prosecutor and the judge is not one and the same person unlike the process below where the Motion is moved and supported by the same persons who will prosecuted and make a determination by the vote. That was wise on the part of the framers of our Constitution and the law.

Secondly, the diversity of this House in terms of the origin of the decision makers implies also that the members of this House are not contaminated by local politics. Thirdly, this House in terms of the architecture, design of the Constitution and the decision-making process in this matter is expected to bring the much desired objectivity in this process.

The Hon. Kawira Mwangaza also takes this opportunity to reflect on the constitutionally prescribed grounds for removal of a governor from office.

Mr. Speaker, Sir, we appreciate that this was one of the first Orders you took Members through. It is critical that throughout this process, we keep these criteria at the back of our minds.

The drafters of our Constitution grafted grounds using specific adjectives. First, the gross violation of the Constitution. I have been asking myself why not just “violation of the Constitution?’’ Secondly, where there are serious reasons for believing that the County Governor has committed a crime under national or international law. Again, I was reflecting on the question, why not just “reasons to believe” but “serious reasons to believe’’. Thirdly, the abuse of office and gross misconduct.

Mr. Speaker, Sir, and distinguished Senators, I asked myself why not just “misconduct?’’ It is our humble submission that it cannot be for nothing that the framers of our Constitution and the law used these descriptive words.

Whereas the Constitution and the statute does not give us the definition of gross misconduct, the Supreme Court of this country, which is an important institution in giving meaning to our Constitution, has supplied us with the meaning of those terms in a process that involves the removal of a judge from office. This was in the case of Muya versus the tribunal appointed to investigate the conduct of Justice Martin Mati Muya. In the interest of time, I will pick out the attributes that the Supreme Court said constitute gross misconduct. The Supreme Court used the following words-

“It must be atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious, and shocking”. These are not my words, but those of the apex court of the Republic of Kenya giving all of us guidance on how to deal with matters such as this.

The standard for removal of a governor in office considering the adjectives used by the drafters of our Constitution as interpreted by our Supreme Court suggests that the process must be rigorous. I was trying to rationalize it. Why did the lawmaker insist on such a rigorous standard? It must be consistent with the rigors of assuming the office itself. The process of assuming the office of governor is not mild. I am aware that Members are sitting in this House who have attempted to vie for the Office of Governor and will bear with me that the process is rigorous.

In the case of Meru County, it must be borne in mind that there are 772,000 registered voters whose voices were heard and out of those voices Hon. Kawira Mwangaza assumed the office of Governor of Meru County.

Mr. Speaker, Sir, Hon. Kawira Mwangaza beseeches this House to employ the above test as the constant north ‘the guiding star’ in these proceedings. What the Governor is telling this House in simple terms is not to be preoccupied with the allegories from Europe and to look at the evidence presented before you.

The law of evidence, which my learned colleague Dr. Muthomi Thiankolu has taught for many years at the university, presents that evidence is not counted, but weighed. Eventually, put this evidence on the weighing scale and come to a conscious conclusion. Can we in good conscience remove a fellow citizen from the high office of the Governor on the strength of the material presented before us?

One may ask, where the evidence the Governor presented before the Senate was before the Assembly undertook the first impeachment process. The HANSARD of the Assembly will bear the Governor out that the Governor’s legal team went before the Assembly with this evidence and asked the Speaker of the Assembly to direct us on how to present the evidence before the house. The Speaker of the Assembly ruled that the legal team and the Governor were in parliamentary parlance ‘strangers’ and could not table material before the county assembly.

Mr. Speaker, Sir, and hon. Senators, 2,400 years ago, that great Greek philosopher, Socrates, is documented to have prescribed the four essential attributes of anyone who sits in the position of a judge as you do today and tomorrow. He observed-

“Four things belong to a judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially.”

Hon. Senators, today and tomorrow, in relation to the business that keeps us here, you sit as judges. The humble plea of the Governor of Meru County to this distinguished House is that you apply this four-part Socratic test. If you do that, she asks for no more favour. The chips will fall in their place and she will naturally be vindicated.

The Governor has furnished evidentiary material before you in the nature of-

Let me take this opportunity to thank the parties for keeping to the time schedule. I believe that going forward, if we keep it the way we have expedited here now, we should be able to cover ground.

Now we are moving to adjourn the House. However, as just a matter of housekeeping, lunch will be served to the parties for the County Assembly and the Governor’s side. You will be served with lunch. You will be guided accordingly as to where you will have this lunch. You will later on resume. So, do not take lunch and disappear because we will need you here at 2.30 p.m.

Now, Hon. Senators, kindly be upstanding.

Hon. Senators, it is now four minutes to 1.00 p.m.

Sen. Nyamu, do you have any medical condition? Hon. Senators, it is now 1.00 p.m., time to adjourn the Senate. The Senate, therefore, now stands adjourned until today Tuesday, 7th November, 2023 at 2.30 p.m.

The Senate rose at 1.00 p.m.