Gachagua's Political Nightmare: High Court Verdict Ignites Impeachment Battle and Future Presidency Doubts

The High Court has upheld the impeachment of former Deputy President Rigathi Gachagua but simultaneously awarded him Sh50 million in damages for the violation of his right to a fair hearing during his 2024 ouster process. This complex judgment, delivered by Judges Eric Ogola, Anthony Mrima, and Freda Mugambi, has ignited considerable online debate among legal scholars regarding Gachagua’s eligibility for future public office and has drawn sharp criticism from prominent lawyers.

Legal experts contend that while the court affirmed the legality of Gachagua’s removal from office, the ruling does not automatically preclude him from contesting public office in future elections. However, the ruling's nature has been met with significant dissatisfaction from the legal fraternity. Lawyers such as Donald Kipkorir, Ahmednasir Abdullahi, former Chief Justice Willy Mutunga, and Law Society of Kenya presidents Nelson Havi, Eric Theuri, and Faith Odhiambo, along with Peter Wanyama, Waikwa Wanyoike, Evance Ndong, and Joshua Malidzo, have expressed strong opinions. Adjectives like 'judicial absurdity', 'quasi-constitutional excuses', 'judicial gymnastics', and 'judicial nonsense' have been used to describe the High Court's decision.

A central point of contention is the court's finding that the Senate violated Gachagua’s rights by failing to grant an adjournment when his lawyers reported he was ill, yet it chose to compensate this violation with damages. Critics argue that the right to a fair trial, enshrined in Article 25 of the Constitution, is non-derogable and cannot be limited, suspended, or exchanged for monetary compensation under any circumstances. Many lawyers suggest that a fairer outcome, after establishing a rights violation, would have been to order a fresh hearing at the Senate or to quash Gachagua's impeachment and reinstate him. Furthermore, concerns have been raised that ordinary Kenyans will ultimately bear the burden of the Sh50 million damages, rather than the senators deemed responsible for the procedural flaw. The precedent set by compensating political leaders impeached through unfair processes with damages is also viewed as deeply troubling, emphasizing that the right to a fair trial should never be sacrificed.

In response to the High Court ruling, the Senate has initiated the process of appealing the decision. Speaker Amason Kingi communicated to the House that he had instructed Senate lawyers to challenge the ruling, particularly the Sh50 million reward. Kingi argued that while the High Court faulted the Senate for violating Gachagua’s rights, it failed to acknowledge the circumstances leading to the Senate's refusal to grant an adjournment due to reported ill health. The Speaker recounted that Gachagua and his counsel were aware he was to take the stand after a lunch break during the impeachment proceedings. Upon resumption, his counsel claimed Gachagua had fallen ill but made no effort, even when requested by the Senate, to provide evidence to support this claim.

Speaker Kingi stated that the High Court's determination that the Senate should have allowed an unsupported adjournment request was erroneous. He pointed out the court's own admission of a belated affidavit from Dr. Gikonyo, submitted "all of two years after the impeachment," which was then dismissed as inconsequential, with the court itself questioning why this evidence was not presented to the Senate earlier. Kingi asserted that the Senate, acting as an impeachment court, decided not to grant the adjournment request due to the absence of evidence or good cause, a standard practice for any judicial or quasi-judicial body. He emphasized that the discretion to grant an adjournment is not automatic but must be exercised judiciously, balancing fair trial rights with the constitutional mandate to prevent unnecessary delays. Kingi further argued that no court, properly interpreting the Constitution, should find a right to a fair trial violated when an accused person chooses to absent themselves without providing sound reasons or evidence. For these reasons, the Senate's appeal will specifically target this "plainly erroneous finding" regarding fair trial rights and, consequently, the Sh50 million constitutional damages award, which is predicated on those findings. Kingi stressed that this appeal is not merely for the Senate's sake, but a duty to respect, uphold, and defend the Constitution under Article 3.