Gachagua rejects Sh50mn award in impeachment case terming it an insult

Former Deputy President Rigathi Gachagua has rejected a KES 50 million compensation award from the High Court, terming it an "insult" and a mockery of the Constitution. The award was granted after a three-judge bench found that his right to a fair trial was violated during his impeachment proceedings in October 2024, specifically due to the Senate's refusal to grant an adjournment. While the High Court upheld the legality of his impeachment, it awarded constitutional damages to vindicate the Constitution and deter future violations. Gachagua, who had sought significantly higher compensation and benefits, views the award as insufficient and has vowed to appeal, arguing that a finding of constitutional violation should have nullified the entire impeachment process. This development highlights critical questions surrounding the adequacy of constitutional damages for high-ranking public officials and the interplay between parliamentary impeachment processes and judicial review in Kenya.

The recent decision by former Deputy President Rigathi Gachagua to reject a KES 50 million compensation award from the High Court, branding it an "insult," has ignited a significant debate within Kenya's legal and political circles. This award stemmed from a landmark ruling by a three-judge bench that, while upholding the legality of Gachagua's impeachment in October 2024, found that his fundamental right to a fair trial had been violated during the Senate proceedings.

This unprecedented rejection by a high-profile public official of a substantial constitutional damages award underscores the complexities inherent in adjudicating violations of fundamental rights, particularly in politically charged contexts. For legal practitioners, the case raises pertinent questions about the principles guiding the assessment of constitutional damages, the scope of judicial review in parliamentary impeachment processes, and the perceived adequacy of monetary compensation for non-pecuniary losses such as reputational harm and dignity. This article will delve into the legal framework surrounding the impeachment of a Deputy President in Kenya, analyze the High Court's reasoning, and explore the broader implications of Gachagua's rejection for the jurisprudence on constitutional remedies.

The removal of a Deputy President from office in Kenya is a process meticulously outlined in the Constitution of Kenya, 2010. Article 150(1) specifies the grounds for removal, including physical or mental incapacity, or impeachment on grounds of gross violation of the Constitution or any other law, serious reasons to believe a crime under national or international law has been committed, 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 Deputy President.

The impeachment procedure typically commences with a motion in the National Assembly, supported by at least a third of all members. If supported by at least two-thirds of the National Assembly, the motion is transmitted to the Senate. The Senate then convenes to hear the charges and may appoint a special committee of eleven members to investigate the matter. The Deputy President has the right to appear and be represented before this committee. If the committee's report substantiates the allegations, the Senate, after according the Deputy President an opportunity to be heard, votes on the impeachment charges. A two-thirds majority of all Senators is required to uphold any charge, leading to removal from office.

In the context of constitutional violations, Article 23(3)(e) of the Constitution empowers courts to grant an order for compensation. The quantum of damages awarded is generally guided by the nature and extent of the right violated, the gravity of the injury caused, and the need to vindicate the Constitution, restore dignity, and deter future violations. This framework underpins the High Court's jurisdiction to review the constitutionality of actions by state organs, including parliamentary impeachment processes, even if it cannot always overturn the political outcome.

The High Court's ruling, delivered by Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi, presented a nuanced outcome: it upheld the impeachment of Rigathi Gachagua as constitutionally valid and final, yet simultaneously awarded him KES 50 million in constitutional damages. The court found that Gachagua's right to a fair trial, a non-derogable right under Article 25(c) of the Constitution, was violated when the Senate declined his request for an adjournment during the impeachment proceedings, thereby denying him a reasonable opportunity to participate and defend himself. This finding, however, did not invalidate the impeachment itself, with the court reasoning that it could not reverse a completed impeachment where the Constitution provides a self-executing process.

Gachagua's rejection of the KES 50 million award stems from a fundamental disagreement with this distinction. He argues that a finding of a gross violation of his fair trial rights should have rendered the entire impeachment process null and void, asserting that "money was never the issue here; justice and constitutional supremacy was." This position highlights a tension in constitutional jurisprudence: whether procedural constitutional violations in high-stakes political processes, particularly those involving elected officials, can be adequately remedied by monetary compensation without affecting the substantive outcome. Gachagua had initially sought reinstatement, later amending his petition to seek compensation for his full five-year term and other benefits, which would have amounted to significantly more than the KES 50 million awarded.

The High Court clarified that the KES 50 million was awarded as constitutional damages to vindicate the Constitution, restore Gachagua's dignity, and deter future violations, rather than as compensation for loss of office. This aligns with the principles of constitutional damages in Kenya, which aim to provide a public law remedy for breaches of fundamental rights. However, the perceived inadequacy of the award, especially when compared to the magnitude of the office and the reputational damage incurred, fuels the debate. Previous awards for constitutional violations in Kenya, such as KES 2.5 million for delayed judicial appointments or KES 910,000 to KES 4.87 million for victims of police brutality, offer some comparative context, though the unique nature of an unlawfully conducted impeachment of a Deputy President makes direct comparison challenging.

Critics of the High Court's decision argue that upholding an impeachment while simultaneously finding a non-derogable right violation creates a "constitutional catastrophe" or "intellectual dishonesty," suggesting that such a violation should logically nullify the unconstitutional outcome. This perspective emphasizes that the injury from an unlawful impeachment extends beyond the individual to the sovereign people and the constitutional order itself. The impending appeal to the Court of Appeal will likely provide an opportunity for higher courts to clarify the delicate balance between judicial review of parliamentary processes and the finality of political decisions, particularly concerning the appropriate remedies for constitutional breaches in such sensitive matters.

The rejection of the KES 50 million compensation by former Deputy President Rigathi Gachagua signals a critical juncture in Kenya's constitutional jurisprudence, particularly concerning the remedies available for violations of fundamental rights in high-profile political processes. For legal practitioners, this case underscores the importance of meticulously articulating the nature of constitutional violations and the specific remedies sought, recognizing that monetary compensation, while a vital tool, may not always be deemed sufficient or appropriate by litigants, especially when the core grievance pertains to the integrity of a constitutional process.

Practitioners must anticipate continued judicial scrutiny of parliamentary actions and be prepared to navigate the complex interplay between parliamentary privilege and constitutional rights. The upcoming appeal to the Court of Appeal will be a crucial watchpoint, as it is expected to provide further clarity on the assessment of constitutional damages for high-ranking public officials and the circumstances under which a procedural constitutional violation in an impeachment process might affect its ultimate validity. This case serves as a powerful reminder that the pursuit of justice, particularly in matters of constitutional supremacy, often transcends purely financial considerations, demanding a robust and consistent application of legal principles to uphold the rule of law.