Condemned unfairly? High Court upholds Gachagua's impeachment, awards him Sh50m

The High Court of Kenya recently delivered a significant judgment upholding the impeachment of former Deputy President Rigathi Gachagua. While affirming the constitutional validity and finality of the impeachment process, the three-judge bench concurrently found that Gachagua's fundamental right to a fair hearing was violated by the Senate during the proceedings. Consequently, the Court awarded him KSh 50 million in constitutional damages, payable by the Senate, to vindicate the Constitution and deter future procedural infractions. This decision underscores the judiciary's role in balancing parliamentary autonomy in impeachment matters with the imperative of upholding individual constitutional rights, setting a crucial precedent for public law practitioners regarding due process and remedies for rights violations in high-stakes political processes.

In a landmark decision with far-reaching implications for Kenya's constitutional jurisprudence and political landscape, the High Court recently upheld the impeachment of former Deputy President Rigathi Gachagua. This ruling, delivered by a three-judge bench, affirmed the legislative authority of Parliament in the removal of a Deputy President while simultaneously acknowledging a significant breach of Gachagua's fundamental rights during the impeachment proceedings. The Court's decision to award KSh 50 million in constitutional damages, despite declining to reinstate him, presents a complex interplay between institutional powers and individual liberties.

This article delves into the High Court's reasoning, examining the delicate balance struck between respecting parliamentary processes and safeguarding constitutional rights. It explores the legal framework governing impeachment in Kenya, the specific rights found to have been violated, and the principles underpinning the award of damages. For legal practitioners, this judgment offers critical insights into the scope of judicial review in impeachment cases, the enforceability of fair administrative action, and the evolving jurisprudence on constitutional remedies in Kenya.

The core thesis of this article is that the High Court's judgment, while seemingly paradoxical in upholding an impeachment tainted by rights violations, reinforces the judiciary's role as the ultimate guardian of the Constitution. It clarifies that even in politically charged processes, adherence to due process is non-negotiable, and violations will attract significant remedies, even if the substantive outcome of the legislative process remains undisturbed due to constitutional finality and institutional stability considerations.

The removal of a Deputy President in Kenya is a process meticulously outlined in the Constitution of Kenya, 2010. Article 150 provides the grounds for removal, which include physical or mental incapacity or impeachment. Impeachment grounds are specified as gross violation of a provision of the Constitution or any other law, serious reasons to believe the Deputy President has committed a crime under national or international law, or gross misconduct. Crucially, Article 150(2) stipulates that the provisions of Articles 144 and 145, which govern the removal of the President, apply with necessary modifications to the removal of the Deputy President.

The impeachment procedure typically involves a motion initiated in the National Assembly, supported by at least one-third of its members. If supported by at least two-thirds of the National Assembly, the Speaker informs the Senate. The Senate then has the option to appoint a special committee of eleven members to investigate the allegations. The Deputy President has the right to appear and be represented before this committee. If the committee substantiates the allegations, the Senate proceeds to vote, and if at least two-thirds of all Senators vote to uphold any impeachment charge, the Deputy President ceases to hold office. This process is designed to be a political one, with specific constitutional safeguards for due process. Additionally, Article 47 of the Constitution guarantees every person the right to fair administrative action, which is further elaborated by the Fair Administrative Action Act, 2015. This right includes the entitlement to expeditious, efficient, lawful, reasonable, and procedurally fair administrative action, and the right to be given written reasons for any administrative action taken.

The High Court's judgment, delivered by Justices Eric Ogola, Anthony Mrima, and Freda Mugambi, navigated a complex legal terrain by distinguishing between the substantive legislative power of impeachment and the procedural rights of the impeached officer. The Court firmly upheld the impeachment, asserting that the process, as undertaken by the National Assembly and the Senate, was constitutionally valid and final. The judges emphasized that impeachment is primarily a legislative function, and the judiciary cannot substitute Parliament's judgment on the grounds for removal. This stance reinforces the principle of separation of powers, acknowledging Parliament's constitutional mandate in determining the fitness of a state officer to hold office.

However, the Court made a critical finding that Gachagua's right to a fair hearing was infringed upon by the Senate. Specifically, the Senate's refusal to grant an adjournment of proceedings, despite being informed of his illness and inability to fully present his defence, constituted a violation of his constitutional rights under Article 47 and Article 50 of the Constitution. The right to be heard is a cornerstone of natural justice and fair administrative action, and its denial, even in a legislative process, was deemed unacceptable by the Court. This highlights the judiciary's commitment to ensuring that even politically charged processes adhere to fundamental principles of fairness.

The most intriguing aspect of the judgment is the remedy granted. Despite finding a clear violation of Gachagua's fair hearing rights, the Court declined to overturn the impeachment or order his reinstatement. The rationale for this was twofold: first, the Constitution treats impeachment as a final and self-executing process once completed, particularly after a successor has been lawfully appointed under Article 149(1). Reinstatement would create an untenable "dual-incumbency" constitutional crisis, which the Court deemed an "absurdity." Second, the Court distinguished the impeachment of a Deputy President from that of a county governor, noting that the former is governed by "constitutional finality" while the latter is more susceptible to judicial intervention under statutory frameworks.

Instead of reinstatement, the High Court awarded Gachagua KSh 50 million in constitutional damages, payable by the Senate. This award was not merely compensatory in the traditional tort sense but was intended to vindicate the Constitution, restore the dignity of the affected party, and deter similar violations in future impeachment proceedings. This aligns with the jurisprudence on constitutional damages in Kenya, which recognizes that such awards serve a broader public purpose beyond mere restitution, emphasizing deterrence and the upholding of the rule of law, even without proof of actual loss. The Court also issued a declaratory order affirming the constitutional necessity for Parliament to enact a dedicated statutory framework for the impeachment of a Deputy President under Article 150, signaling a call for legislative clarity.

The High Court's decision in the Rigathi Gachagua impeachment case offers a nuanced yet powerful affirmation of constitutionalism in Kenya. For legal practitioners, several key implications emerge. Firstly, while the judiciary respects the finality of parliamentary impeachment processes for high office holders like the Deputy President, it will not shy away from scrutinizing procedural fairness. This means that even in politically charged contexts, adherence to due process, particularly the right to a fair hearing, remains paramount.

Secondly, the award of KSh 50 million in constitutional damages, despite the refusal to reinstate, sets a significant precedent for remedies in public law. It underscores that violations of fundamental rights, even when not leading to the reversal of an administrative or legislative act, will attract substantial financial penalties aimed at vindicating the Constitution and deterring future infractions. Practitioners should therefore advise public bodies, including legislative assemblies, to meticulously observe fair administrative action principles to mitigate legal and financial exposure. Finally, the Court's call for a dedicated statutory framework for Deputy President impeachment signals a potential area for legislative reform, which practitioners should monitor closely as it could further clarify procedural requirements and judicial oversight. This judgment serves as a potent reminder that constitutional rights are not mere aspirations but enforceable entitlements, even at the highest echelons of power.