The impeachment of former Deputy President
Rigathi Gachagua is once again in the headlines, this time as the courts consider the
challenges arising from that impeachment.
For good reason, public commentary
must be careful as the matter is active before the courts, and Kenya’s sub judice
rule exists to protect both the integrity of the process and the right of all parties to a
fair hearing.
But restraint does not mean silence. Rather, it means speaking to principles
rather than outcomes.
At its core, the Gachagua litigation raises a
familiar but unsettled question in constitutional democracies: how far should
courts go in reviewing a political process that is itself anchored in the constitution?
Impeachment is, by design, a hybrid creature. It is political in its initiation and voting
thresholds, yet constitutional in its limits.
The tension lies in ensuring that the political branches
exercise that power within the bounds of law.
The first fault line is procedural fairness.
Even where Parliament is exercising a constitutional mandate, it is not exempt from
the basic demands of due process.
The courts are not being asked to decide whether the
allegations against Gachagua were proven. Rather, they are more narrowly being
asked whether the impeachment process met the standards the constitution itself
imposes.
That distinction matters. Courts are generally
reluctant to second-guess the merits of political judgments. But they are far less
hesitant to intervene where process collapses into formality.
The jurisprudence that has
developed since 2010 suggests a middle path: deference to Parliament on substance, vigilance
on procedure. If that line is maintained, the courts can vindicate constitutional norms
without displacing the political branches.
The second issue is institutional balance. Kenya’s
2010 constitution deliberately fragmented power to prevent its concentration.
Impeachment is one of the tools of accountability within that framework. Judicial
review is another.
The challenge is ensuring that one does not swallow the other. If
courts retreat too far, constitutional safeguards risk becoming hollow. If they go too
far, they risk converting themselves into final arbiters of inherently political contests.
What appears to be emerging — at least from the
structure of the arguments — is a cautious judicial posture. The courts have thus
far allowed political processes to run their course while preserving the right to
review them after the fact. That approach respects institutional roles while keeping the
constitutional backstop intact.
A third, more technical issue has also surfaced:
the proper constitution of the bench hearing the matter. While this may appear
procedural in the narrow sense, it carries broader implications. Questions about who has the authority to empanel judges are not mere administrative quibbles. They go to the
legitimacy of the judicial process itself.
If the bench is improperly constituted, the
consequences can ripple beyond this case, affecting confidence in the administration of
justice.
Perhaps the most telling development, however,
is the shift in remedy Gachagua seeks. The move away from reinstatement toward
compensation reframes the dispute. It lowers the temperature of the
separation-of-powers debate by reducing the prospect of courts directly reinstating a political
officeholder.
Instead, it places the focus on whether there was a constitutional violation and, if so,
what remedy is appropriate. In many jurisdictions, courts are more comfortable
granting declaratory relief or damages than unwinding completed political processes.
For the public, the temptation is to view the
case through the lens of personalities and political alignments. That is understandable,
but it is also limiting. The more enduring question is institutional: what standard will
govern future impeachments?
If the courts articulate a clear threshold for procedural
fairness, that standard will outlive the present dispute and shape the conduct of Parliament in
years to come.
This is why the case matters beyond the
immediate parties. It is a quiet test of whether the constitutional order can discipline
political power without destabilising it. The answer will not come in sweeping pronouncements, but in
careful lines drawn around process, jurisdiction, and remedy.
The courts now have an opportunity to clarify
those limits in a way that respects both the letter and the spirit of the 2010
Constitution. It is a fine dance the court must have.
That’s what is at stake.
The US-based writer is a political commentator
