Why Gachagua impeachment ruling could reshape executive accountability

The High Court has ordered the Senate of Kenya to pay former Deputy President Rigathi Gachagua a sum of Sh50Million.

This is after finding that his rights to a fair trial were violated during the impeachment proceedings that saw him ousted from office in October 2024.

The court issued an order finding that Gachagua’s fair trial rights were infringed when the senate declined to grant an adjournment despite his absence from the proceedings.

The three- judge bench comprising Justice Anthony Mrima, Justice Dr. Freda Mugambi and justice Eric Ogola delivered the order of the Sh50 Million as part of its landmark ruling on Monday.

The bench maintained that the award was necessary both as a constitutional remedy and compensation.

‘’The court awards constitutional damages of Sh50 million to his excellency Gachagua payable by the Senate to vindicate the constitution, restore the dignity of the affected party and deter future violations,’’ the bench stated in its ruling.

This compensation was not only aimed at restoring Gachagua’s dignity as noted by the three-bench judges but also to send out an alarm to the state organs against future breaches of fair trial.

The parliament has also been called upon through an order issued by the court affirming the great need for parliament to enact a dedicated statutory framework governing the impeachment of a Deputy President under Article 150 of the constitution.

On the broader query of the legal framework governing the removal of a Deputy President, the court acknowledged that article 150 of the constitution lacks a comprehensive statutory framework, a gap that leaves fundamental procedural questions to be resolved by the courts and potentially undermines public confidence and institutional certainty.

However the court stated that the absence of such legislation does not invalidate the impeachment proceedings that had already been undertaken against Gachagua.

 It noted that parliament had depended on the constitutional provisions under Article 144 and 145 to safeguard the rights of the former Deputy President during the impeachment process.

On matters of pension and emoluments, the bench did not make any findings, stating that Gachagua was at liberty to pursue the matter before an appropriate forum.

Given the public interest nature of the proceedings, each party was directed to bear its own costs. 

However Gachagua has received a major setback since the court firmly upheld his impeachment dismissing his petition.

In a detailed judgment delivered on Monday by the bench,the judges rejected the key arguments advanced by Gachagua and upheld the impeachment process conducted by parliament.

On allegations of bias against the Speaker of the National Assembly, the judges found Gachagua’s evidence not sufficient enough to support the claims and therefore dismissing them as unsubstantiated.

The court also maintained that the public participation process conducted, parliament had provided adequate notice through advertisements published in both English and Kiswahili newspapers and that citizens were offered a genuine opportunity to submit their views on the matter.

‘’We are satisfied that the public participation conducted during the impeachment process met the constitutional threshold,’’ the bench stated.

This stand point by the court echoed victory for the Deputy President Kithure Kindiki.

Since the court further stated that on the issue of nominations and approval of Deputy President Kithure Kindiki, the proceedings were televised and conducted transparently and that public participation was not constitutionally required for parliament’s approval of Kindiki’s nomination.

However, Gachagua's legal team was deeply unhappy and disatisfied by the court ruling.

On the other hand, the Law Society of Kenya (LSK) president, Charles Kanjama, during an interview with Citizen TV, described the ruling as a mixed bag. 

Kanjama says that each party has walked away with something but none has emerged with a clean victory.

‘’Each side has something to take home, everyone has got something, something they may like and something that they don’t like,’’ Kanjama noted.

Kanjama further noted that Gachagua had been facing what he termed as a political death sentence, going into the ruling given that the senate’s impeachment decision could have ended his political career completely.  

The issuance of Sh50 million as compensation, according to Kanjama, has offered Gachagua a measure of constitutional vindication.

‘’The effect of that , together with the declaration ,is that the taint of unethical conduct or conduct that is contrary to the constitution against Rigathi Gachagua has been lifted," Kanjama said.

Kanjama said the ruling raised more questions about whether the constitution had been faithfully interpreted in all its aspects.