The Office of the Director of Public Prosecution (ODPP) headed by Noordin Haji has maintained that it will pursue Mathira MP Rigathi Gachagua in his criminal case whether he wins the August 9 General Elections or not.
Speaking exclusively to Kenyans.co.ke on Monday, May 16, a representative at the Upper Hill-based office noted that the case would still be active even if Gachagua is sworn in as the country's Deputy President.
He further explained that for now, the politician was free to seek public office and could only be barred if he was convicted of the crime.
"(If he becomes the DP), it will not affect his case. We will still continue with the case. The only person who is not taken to court is the President," explained the source.
When asked whether Deputy President William Ruto had an active criminal case, the representative responded that no such case was lodged with the ODPP. "Not that I know of. Not with us, maybe civil (case). We have nothing in criminal (with Ruto)."
The sentiments were backed by constitutional and human rights lawyer Harun Ndubi who argued that Gachagua would not enjoy the same prosecution immunity that is accorded to a sitting President.
"Right now, him being an ordinary citizen, he does not enjoy any immunity so things will go on. The protection of the President is in regard to the person who is holding the office of President. I don't think there is such protection for a person holding the office of the Deputy President.
"Even if they were to win, the defence available to the President is not available to the Deputy President and therefore, he can still be prosecuted," he stated.
He further explained that while in office, the Head of State could not use his powers to legally influence the outcome of the court proceeding.
If Gachagua was found guilty, he would be barred from continuing to hold the office and the President would be forced to seek another deputy.
"If he is found guilty, there will be a sentence then he will lose his office of Deputy President because you can't seek or hold a public office if you have been jailed (for a period of six months or more) or impeached from public office. The President will then seek another deputy but he will have to go to Parliament for approval," he added.
In 2021, Gachagua was charged with laundering up to Ksh7.3 billion but he pleaded not guilty to all the charges. The authority also wants him to explain how he acquired more than Ksh200 million frozen in his bank accounts.
The lawmaker, however, maintains that the case is politically instigated and will not bow to pressure.
“Those are allegations and an allegation is not a conviction. The Kenyan constitution is very clear, that you can only be barred from political office when you have been convicted and you have exhausted the mechanisms offered by law for appeal. I made my money during the reign of President Mwai Kibaki, like many Kenyans," argued Gachagua.
