Opposition, lawyers poke holes into Gachagua impeachment judgment

The Judiciary is at the centre of an intense public debate following what many lawyers have criticised as a contradictory judgment in the impeachment case against former Deputy President Rigathi Gachagua.

A three-judge bench of the High Court on Monday upheld Gachagua’s impeachment while simultaneously finding that his constitutional right to a fair hearing had been violated.

The finding has triggered criticism from opposition leaders and legal practitioners, who argue that the ruling raises troubling questions for Kenya’s constitutional jurisprudence.

The Gachagua case carries significant political implications for the opposition and could have a bearing on the 2027 presidential contest.

If the impeachment is ultimately upheld by the Supreme Court, Gachagua, who is widely regarded as a Mt Kenya political kingpin, will be permanently barred from holding public office.

The controversial decision was delivered by Justices Eric Ogola, Anthony Mrima and Freda Mugambi.

In their judgment, the judges found that the Senate violated Gachagua’s right to a fair hearing when it declined to adjourn proceedings despite his inability to attend due to illness.

The court subsequently awarded him Sh50 million in damages.

However, the judges still upheld the impeachment.

“Once the court found that the right to a fair hearing had been violated, it was duty-bound to nullify the impeachment proceedings. Damages cannot be a substitute for the right to a fair hearing,” said former Justice Minister Martha Karua, herself a Senior Counsel.

The same position has been taken by many lawyers, including Law Society of Kenya President Charles Kanjama, his predecessor Faith Odhiambo, as well as lawyers Ekuru Aukot and Ahmednasir Abdullahi.

Gachagua described the ruling as contradictory and said he disagreed with it.

He argued that the judges acknowledged violations of his constitutional right to a fair hearing but still upheld the impeachment process.

“While we respect the ruling of the High Court, we totally and fundamentally disagree with the interpretation of the law and application of facts. The long-standing legal principle of natural justice and the right to a fair hearing has been ignored,” Gachagua said.

The former deputy president said his legal team had already been instructed to file an appeal at the Court of Appeal, expressing confidence that justice would eventually prevail.

DAP-K leader Eugene Wamalwa, also a lawyer and former Constitutional Affairs and Justice minister, described the ruling as a “constitutional and judicial absurdity”.

Kanjama said he was shocked by the court’s reasoning.

“Normally, when a right to a fair trial or fair hearing is infringed, you invalidate the hearing, set it aside or order a new trial,” he said.

“This is the first time in my experience as a lawyer that a court has made a clear finding that the right to a fair hearing was substantively violated but failed to reverse the underlying outcome.”

Kanjama noted that courts have historically held that constitutional violations affecting due process contaminate the resulting decision, raising questions about why a different approach was adopted in Gachagua’s case.

Odhiambo went further, arguing that the judgment raises fundamental questions about the coherence of constitutional remedies in Kenya.

“The right to a fair hearing is not procedural decoration. It is a substantive constitutional guarantee, particularly in proceedings that result in the removal of a person from high public office,” she said.

Odhiambo drew parallels with the landmark 2017 presidential election petition in which the Supreme Court nullified President Uhuru Kenyatta’s victory due to constitutional and legal irregularities in the electoral process.

The court in that case held that a flawed process could not produce a constitutionally valid outcome.

“When we place that 2017 reasoning alongside yesterday’s judgment, a legitimate concern emerges,” Odhiambo said.

“In 2017, the violation of constitutional standards was sufficient to nullify the result entirely. Yesterday, a violation of the right to a fair hearing was found, remedied in damages, but the result was preserved.”

Makueni Senator Dan Maanzo, who was part of Gachagua’s legal team, echoed the criticism.

“There is a cardinal principle of law: you can never be condemned unheard,” Maanzo said.

“At the moment Rigathi Gachagua fell ill, everything should have ceased. We sought only a few days for him to recover and return to the floor, but the request was rejected.”

Senate Majority Leader Aaron Cheruiyot, however, defended the Senate’s handling of the impeachment proceedings, maintaining that the House accorded Gachagua a fair hearing.

Cheruiyot said the Senate would challenge the High Court’s finding faulting aspects of the process.

“As the Senate, we shall definitely appeal the High Court finding on fair trial. We accorded Gachagua the opportunity to be heard orally and through his filed submissions,” Cheruiyot said, adding that Gachagua opted to use procedural tactics that slowed down proceedings.

On Tuesday, Gachagua vowed to challenge the High Court decision upholding his impeachment.

He made the declaration while simultaneously launching what he described as a nationwide political campaign to rally the opposition behind a single candidate to face President William Ruto in 2027.

Gachagua said those dismissing his eligibility were merely afraid of his candidature, insisting he would be on the ballot in 2027.

“Article 99(3) says no person shall be barred from vying in any election until all avenues of appeal are exhausted. I will be vindicated by the Court of Appeal, hopefully, and with further protection at the Supreme Court still in my hands.”

“I wish to confirm to my supporters that I am eligible to vie as a candidate should the formula agreed upon favour me as the single presidential candidate.”

According to Gachagua, the court’s finding that his rights under Articles 25, 47 and 50 of the constitution had been violated should have automatically rendered the impeachment process null and void.

He argued that Parliament’s actions, which the judges found unconstitutional in certain respects, could not legally form the basis of a valid impeachment.

“Once that determination was made, the entire process collapsed and was null and void. There was no impeachment,” he said.

Gachagua also took issue with the court’s decision to award him Sh50 million in damages, saying the compensation was inadequate and failed to address the constitutional issues raised in the case.

“The Sh50 million awarded to me is an insult to my fundamental rights and freedoms and a mockery of the constitution. We are not interested in money. Justice and constitutional supremacy were the issues,” he said.

In a renewed attack on President Ruto, Gachagua claimed he had previously rejected an alleged offer of Sh2 billion to resign from office, insisting that he chose to defend constitutional principles instead.

The former deputy president, however, signalled that his immediate focus would now shift from the courtroom to the political arena.

He revealed that consultations with supporters and political allies had convinced him that the opposition should prioritise identifying a single presidential candidate to challenge Ruto in 2027.

Gachagua said he had been tasked by his supporters with leading negotiations among opposition leaders under the umbrella of the United Alternative Government.

“I want to assure the people of Kenya that I will lead from the front to identify the presidential candidate,” he said.

He outlined two possible paths for the opposition coalition.

The first, he said, would involve consolidating support across the country if consensus emerged around his own candidature.

The second would see opposition principals agree on another flag bearer, whom he pledged to support fully.

“If I am not the flag bearer, my supporters and I will support the chosen candidate and ensure there is no division in the opposition,” he said.

Gachagua maintained that he would play a central role in efforts to remove Ruto from office, claiming he had the political network and organisational capacity to unite opposition supporters across the country.

He accused the Kenya Kwanza administration of state capture and extrajudicial killings and vowed to spearhead a campaign to make Ruto a one-term president.

“Those who mobilised four million voters to put him in office will mobilise 10 million voters to remove him,” Gachagua said.

He said after concluding his current political engagements in Western Kenya, he would dedicate his efforts to building consensus around a single opposition candidate, leaving the legal battle over his impeachment to his lawyers.

“The journey to find one candidate to face Ruto has begun,” he said.