How divisions in Jubilee Party cost Babayao his seat
By Hillary Mageka and Antony Mwangi.
The entrenched divisions in Jubilee Party and ideological differences between the Tangatanga group of politicians in Deputy President’s corner and the Kieleweke group that aligns itself with President Uhuru Kenyatta cost Kiambu Governor Ferdinard Waititu Babayao his seat.
The new-found alliance between President Kenyatta and ODM leader Raila Odinga also played a role in condemning Waititu’s political fate.
Senate Votes
On Wednesday, the Senate impeached Kiambu Governor Ferdinard Waititu Babayao in a majority vote.
This is despite the spirited campaigns by DP Ruto’s allies to save Waititu’s job to hand him a political lifeline.
However, twenty-eight senators voted in support of a motion to remove the Governor from office, while thirteen senators voted against the removal.
Those who voted in Waititu's favour include senators Kipchumba Murkomen (Elgeyo Marakwet), Susan Kihika (Nakuru), Anwar Oletiptip (Lamu), and Mithika Lithuri (Meru)
Others were John Kinyua (Laikipia), Aaron Cheruiyot (Kericho), Samson Cherargei (Nandi), Christopher Langat (Bomet) and Milicent Omanga (nominated).
They argued Waititu’s to move to court should the house uphold the county assembly’s position.
Senate Majority Leader
Though, there was one abstention, a visibly angry and emotional Majority Senator Kipchumba Murkomen regretted that the House had itself to a quasi-judicial.
“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 meant,” Murkomen said while moving the motion.
He 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.
Murkomen, who was in the lead mobilizing his colleagues to throw away the motion for lack failing to meet the constitutional threshold, insisted the stakes are high, “if it fits, it does fit, you acquit.” 
“We must put weight on the documents and evidence supplied by county assembly. If the charges and evidences 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,” the senator noted even as he appealed to his colleagues to support the motion.
Seconding the motion, Minority leader Senator James Orengo termed impeachment motion against Governor Waititu as an “unfortunate case” saying the senate’s decision will overturn the Kiambu Voters verdict in 2017.
Quoting, Raila Odinga’s 2013 presidential election petition, Orengo said it was on the side of the governor to provide
“There was no rebuttal on the allegations and evidence presented by county assembly, there was no document for rebuttal,” Orengo said.
He added: “The only document I saw was the document for preliminary objections, there was no counter-evidence, Governor Waititu has been a lot of dishonor by his lawyers,”
“I invite the senators to look at individual charges to find whether it meets the threshold,”
Kericho senators Aaron Cheruiyot and his Nandi counterpart Samson Cherargei claimed that Waititu was not going to just because of the political alignments in the house.
“Because, its political convenient today, please lets us mind conscience, you don’t know where you will stand tomorrow,” Cheruiyot held.
“In case of Waititu, it is a government eating its own people because of politics,” Cherargei replied.
However, there was a moment of confusion, when Nandi Senator Samson Cherargei raised on a point of order asking his Muranga counterpart Irungu Kang’ata to recuse himself from the proceeding claiming he was an interested party.
Cherargei claimed Senator Kang’ata was one of the partners in Muchoki, Kang’ata, Ndegwa and company advocates which is a law firm which represented Governor Waititu in the impeachment hearings.
“Mr. Speaker I hope when we proceed to vote and other decisions of the House, we will need a ruling on how or when we release senator Kang’ata from participating on the final deliberations,”
Section of 99 of the Senate orders on declaration of interest says: “A Senator who wishes to speak on any matter in which the Senator has a pecuniary or proprietary interest shall first declare that interest,”
While responding to objection by Nandi legislator, Senator Kang’ata affirmed his relationship with Charles Njenga, who appeared for Waititu saying they have had a long peculiar association with the firm.
“In respect to this matter, we have met and hereby declare that I do not have any peculiar interest in the matter being handled by the House, Mr Speaker I ask you find that rule does not apply,” he said.
He added: “Because I have an obligation to the government led by President Uhuru Kenyatta by which he has appointed me as his deputy majority whip, I really need to be in this house to do my duty. Therefore I ask that don’t let that rule apply
Kiambu County Assembly had accused Governor Waititu of abetting corruption, gross violation of the constitution and the county governments act, the public finance management act and the public procurement and disposal act.
The ward representatives indicted the governor’s family of doing business with the county, direct conflict of interest, abuse of office and over-budgeting in the roads department for kick-backs.
Waititu is the sixth governor to be recommended for impeachment by ward representatives and as has happened previously.
Of the last five, only Embu Governor Martin Wambora was found guilty of the accusations against him and his impeachment was confirmed. He, however, contested the decision in court and his impeachment was quashed.
Governors Granton Samboja (Taita Taveta), Paul Chepkwony (Kericho) and Mwangi Wa Iria (Muranga), former Deputy Governor Benard Kiala and late Nyeri Governor Nderitu Gachagua kept their jobs after the accusations against them were dropped by the senators.
The Members of County Assembly can now table another motion in six months if they feel dissatisfied.
Earlier, Governor Waititu mounted a spirited fight to save his job tearing into charges levelled against him by the county assembly saying it was just but a fishing expedition thus did not meet the threshold.
Through his lawyers, the governor said the impeachment motion before the House was flawed and appealed with the Senate to strike out the case.
Lawyer Charles Njenga, one of the counsel’s for Waititu said Kiambu County Assembly did not follow the right House procedure and guidelines as stipulated in the County Government Act and Standing Orders in ousting him.
Njenga alleged on the material day December 19th the assembly did not have requisite number of members to carry out an impeachment motion and asked the Senate to investigate the activities and conduct of the assembly.
“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,” Njenga held.
He added: “The governor of Kiambu was not impeached in the county assembly. The motion before you is therefore untenable and should be dropped.”
However, the county assembly through its lawyer Nani Mungai Kimani said evidence produce by the Clerk of the assembly showed there were a total 64 MCAs, of which 63 of them which constitutes a majority of the 92 ward representatives voted to impeach him.
The Kiambu county boss also contested that the assembly prosecuted his impeachment for more than 14 days as required in the assembly rules and procedures.
Lawyer Peter Wanyama, also acting for Waititu, accused the House of breaching the constitution, statutory laws and house procedures timelines by 28 days.
In particular, Wanyama probed the decision of the Senate speaker Kenneth Lusaka to convene the house 28 days after the impeachment of the governor 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 the 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.
Last week, Speaker Lusaka and Senate Majority leader Kipchumba Murkomen explained that the law was silent on what happens when the House is on recess.
However, Wanyama held Speaker Lusaka convened a session to hear and discuss the charges against the Governor outside the statutory timelines.
“You, therefore have no jurisdiction then to consider the allegations leveled by the County Assembly,” the counsel claimed.
He added: “What were are asking is a fundamental legal question, that this House has made a substantive or serious mistake that brings to question the legality of this sitting that can only be cured by striking out the motion,”
Lead lawyer for Waititu, Ng’ang’a Mbugua also discounted the evidence adduced by the assembly to firm up the charges of abetting corruption, gross violation of the constitution, direct conflict of interest, with the governor’s family accused of doing business with the county, abuse of office and over-budgeting in the roads department for kick-backs.
“The assembly has failed to produce or demonstrate any evidence to support their allegations,” Mbugua alleged.
In the charges tabled in the Senate, the MCAs accused Waititu of conflict of interest and contravention of the Public Procurement and Disposal Act, 2005 in influencing the award of lucrative tenders to companies associated with immediate family and close relatives.
He also promptly facilitated the irregular transfer of the said land totaling to 0.135 hectares on the January 29, 2018 to Mrs Esther Wamuyu Nyatu a common law wife of and mother of the children of the Governor.
According to the MCAs, the governor used forceful dispossession of Mrs Cecilia Njoki Mbugua, a widow of two prime plots of land within Thika Municipality.
The two plots namely Thika Municipality/Block XI/877 and Thika Municipality/878 were part of the widow’s inheritance from her deceased husband.
“The Governor and his wife made admission to the Ombudsman of the irregular acquisition of the land. The Ombudsman is a constitutional body and its findings of fact implicate the Governor in impeachable conduct,” they held.
Further, to this, the Governor has hired over 600 casuals without the involvement of the Public Service Board.
Upon realizing that he had broken the law, it is alleged that the Governor caused all the said staff to be fired exposing the County to risk of multiple suits and loss of public funds.
The ward reps also accuse Waititu of lacking accountability in managing county resources thereby plunging the devolved unit into a Sh4 billion debt. This, they said, amounted to gross violation of the Constituent and PFM Act.
They reckoned that the Waititu awarded tenders worth billions of shilling to his kin, including wife and children, defrauded a widow of a plot of land in Thika and usurped the powers of county public service board by single-handedly hiring 600 casual workers.
In the charges read out in the chamber, the MCAs said Waititu oversaw the awards of Sh3.3 billion tender for road tarmacking in the county against an approved budget of Sh1.3 billion.
By doing so, he exposed the county to huge losses through potential suits for breach of contract and poor pending bills, a matter they said amount to violation of the Constitution – principles of finance.
But 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 offense.
“You were not talked 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.
When he rose to address senators, Waititu pleaded not guilty urging the lawmakers to spare his job and dwindling political star.
He said it will be unfair for someone like him who has worked hard to be haunted out office.
“It’s is ungodly for me, who has worked hard, to be removed just like that, unceremoniously,” the governor said.
“…may be because I am not in your politics right position. And tomorrow, with politics, I can change and be with you. Who knows? he noted.
He said, “We have been changing parties, nobody knows what will happen. So you cannot judge a politician from what was happening last week or yesterday,”
“You don’t know what will happen tomorrow. So I besiege you, don’t judge me on what happened or what is prevailing now. Please handle may case like any other case,”
