Ekuru Aukot: Gachagua petition decision bad judgment

Constitutional lawyer Dr Ekuru Aukot

The decision by the three-judge bench of the High Court is a bad judgement. This is particularly so when you look at Article 25 of the Constitution, which provides that the right to a fair trial shall not be limited. It is a non-derogable right.

For the bench to find that former Deputy President Rigathi Gachagua’s rights were violated and then go ahead to uphold the process is an oxymoron in law.

Second, having found that his rights were violated, the court left Gachagua without a remedy. You cannot compensate legal violations with monetary value. Who told the court that the violations were worth Sh50 million?

Having found that his rights were violated, the court should have restored the status quo.

You keep hearing Gachagua saying he is the elected Deputy President and that Prof. Kithure Kindiki is not, because the people of Kenya went to the ballot and elected Gachagua alongside President William Ruto on a UDA ticket.

It is a judgement that needs to be corrected because it sets a bad precedent.

This is not about Gachagua or political affiliation. We have to look at how we protect holders of constitutional offices. Today it will be Gachagua; tomorrow it will be someone else.

For instance, in the last administration, we saw National Assembly Majority Leader Aden Duale and Senate Majority Leader Kipchumba Murkomen removed from their parliamentary positions after the president and his deputy fell out.

With this judgement, we are seeing constitutional protection being lost.

The other issue we need to examine is the role of MPs. Are MPs out to protect the constitution or the president and political affiliations?

This process exposed MPs as protecting political affiliations. In doing so, they betrayed their cardinal duties of legislation, representation and oversight.

Gachagua has the opportunity to appeal the entire judgment because here we are seeing judges speaking from both sides of their mouths.

Dr Ekuru Aukot is a constitutional lawyer and served in the Committee of Experts. He spoke to the Star by phone.