DP Gachagua risks losing lavish retirement benefits if impeached

Following his impeachment by the National Assembly, the fate of Deputy President Rigathi Gachagua now lies with the Senate.

Beginning Wednesday next week, Senators will decide the fate of DP Gachagua following his impeachment by an overwhelming majority of 282 votes in the National Assembly.

Gachagua will now need to win the support of at least 23 Senators to defeat the motion to impeach him; failure to do so may result in his impeachment and his subsequent removal from office.

It remains unclear whether he will receive any lifetime retirement benefits accorded to Deputy Presidents and designated state officers under the Retirement Benefits Act of 2015.

"Gachagua risks losing the retirement benefits of a former Deputy President if he is removed from office. When you are being impeached, it is a punishment, and if it is a punishment, you do not expect to enjoy the full benefits; otherwise, it defeats the very purpose of that penalty," Lawyer Willis Otieno told Citizen TV.

"If the Deputy President is impeached, it doesn't mean that he automatically loses those benefits. He can still enjoy them, but if Parliament then passes a motion saying that you have been removed based on the criteria stated in this law and we don’t want you to have the benefits, then he will lose the benefits," Charles Kanjama, another lawyer, added.

According to the Retirement Benefits Act of 2015, a retired Deputy President is entitled to a monthly pension equivalent to 80% of their last monthly salary while in office.

Similarly, retired DPs are entitled to a lump sum payment on retirement calculated as a sum equal to one year's salary paid for each term served in office, two saloon cars and a four-wheel drive replaceable once every four years, accompanied by a fuel allowance equal to 15% of the current monthly salary of the office holder.

Additionally, they are entitled to a full medical cover providing for local and overseas treatment, provision of necessary staff, armed security guards on request, a diplomatic passport, and access to the VIP Lounge of any airport within Kenya, among others.

Benefits that, according to Otieno, Gachagua will be entitled to only if he opts to voluntarily resign before his impeachment, should the Senate decide to green-light his removal from office.

"The unfortunate bit is that the taxpayer must bear the burden of accommodating Deputy Gachagua if he opts to resign because having served in that office, the assumption is that he gave a service to the nation," said Otieno.

"I personally think that even where you can take away retirement benefits may be found in future to be unconstitutional because it is not up to standard with contemporary practice of employment law. Benefits you have accrued should not be lost because of the manner in which you lose service; at least that happens for all other employees apart from these high state officers where there is a provision in the law," Kanjama added.

The lawyers argue that Gachagua has a strong case should he decide to rely on the courts to save him from his impeachment, but it still has to be strong enough to defeat the political undertones surrounding his impeachment.

"Either the impeachment motion itself, which is the first process, or the impeachment proceedings at the National Assembly or the impeachment trial in the Senate - if any of those processes are found to be unconstitutional, then the whole process collapses," said Kanjama.

"He has a solid case, but I don’t think the courts will want to wade into a political conversation. This is the time when courts normally exercise what is called judicial restraint, known as the doctrine of avoidance," Otieno added.