Gachagua to appeal High Court ruling upholding impeachment

Former Deputy President Rigathi Gachagua has announced his intention to appeal a recent High Court ruling that upheld his impeachment, despite acknowledging a violation of his right to a fair hearing. The High Court affirmed the constitutional validity and finality of the impeachment process, emphasizing that courts cannot reverse a completed impeachment of a Deputy President where a successor has been lawfully appointed. However, the court found that the Senate infringed upon Gachagua's fair hearing rights by proceeding with impeachment hearings while he was ill, awarding him KSh 50 million in compensation, which he has rejected. This appeal will test the delicate balance between parliamentary autonomy in impeachment proceedings and the judiciary's role in safeguarding constitutional rights.

The Kenyan legal landscape is once again poised for a significant constitutional interpretation battle following the High Court's recent decision to uphold the impeachment of former Deputy President Rigathi Gachagua. The three-judge bench, while affirming the constitutional validity and finality of the impeachment, critically noted that Gachagua's right to a fair hearing was violated during the Senate proceedings. This nuanced ruling has set the stage for an appeal to the Court of Appeal, with Gachagua rejecting the KSh 50 million compensation awarded for the rights violation and vowing to challenge the entire decision.

This development underscores the persistent tension between the legislative and judicial arms of government in matters of political accountability, particularly concerning high-stakes impeachment processes. The High Court's judgment reinforces the principle that impeachment is primarily a legislative function, yet it simultaneously asserts the judiciary's role in ensuring adherence to constitutional safeguards. Practitioners will be keenly watching the appellate process, as its outcome will have profound implications for the interpretation of constitutional limits on parliamentary powers and the scope of judicial review in Kenya's governance framework.

The removal of a Deputy President in Kenya is governed by a stringent constitutional framework, primarily outlined in Articles 145 and 150 of the Constitution of Kenya, 2010. Article 150 stipulates that the provisions of Article 145, relating to the removal of the President by impeachment, apply with necessary modifications to the removal of a Deputy President. Grounds for impeachment include a gross violation 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.

The impeachment process commences in the National Assembly, where a motion supported by at least one-third of all members is required. If the motion is supported by at least two-thirds of the National Assembly, the Speaker informs the Speaker of the Senate. The Senate then convenes to hear the charges and may appoint a special committee of eleven members to investigate the matter and report its findings within ten days. The Deputy President has the right to appear and be represented before this committee and the full Senate. If at least two-thirds of all members of the Senate vote to uphold any impeachment charge, the Deputy President ceases to hold office. The Impeachment Procedure Act, 2018, further elaborates on these procedures, including provisions for judicial review within specific timelines.

The High Court's ruling on the impeachment of former Deputy President Rigathi Gachagua presented a complex legal outcome. On one hand, the three-judge bench affirmed that the impeachment was constitutionally valid and final, asserting that courts cannot reverse a completed impeachment where a successor has been lawfully appointed. This stance reinforces the doctrine of separation of powers, acknowledging impeachment as primarily a legislative function and limiting judicial intervention to procedural and constitutional compliance rather than the merits of the legislative decision.

However, the court simultaneously found a significant procedural flaw: the Senate violated Gachagua's constitutional right to a fair hearing under Article 50 of the Constitution of Kenya, 2010, by proceeding with the impeachment hearings despite his illness in October 2024. The judges agreed that denying him a full opportunity to defend himself constituted an infringement of his rights. Despite this finding, the court ruled that this violation was not sufficient to invalidate the entire impeachment process, particularly given the lawful appointment of a successor, arguing that reversing the impeachment would create a constitutional crisis.

In light of the fair hearing violation, the High Court awarded Gachagua KSh 50 million in damages. Gachagua, however, has publicly rejected this compensation, terming it an “insult” and signaling his intent to appeal the entire ruling. His appeal is likely to hinge on whether a fundamental breach of fair hearing rights, as acknowledged by the High Court, can be remedied solely through monetary compensation without affecting the validity of the underlying impeachment process. This raises critical questions about the efficacy of judicial review in protecting individual rights during political processes, especially when the courts are reluctant to overturn legislative outcomes due to concerns about constitutional stability. The Impeachment Procedure Act, 2018, allows for judicial review of impeachment decisions, with appeals from the High Court to be heard and determined within forty-five days.

Furthermore, the ruling carries significant political implications. An impeached leader in Kenya is generally barred from contesting future elections. Gachagua's appeal, therefore, is not merely about compensation but about his political future and the precedent it sets for other state officers. The Court of Appeal will need to carefully weigh the finality of legislative impeachment decisions against the imperative of upholding fundamental constitutional rights, particularly the right to a fair hearing, which is a cornerstone of Kenya's constitutional democracy. The Supreme Court has previously dealt with preliminary applications in Gachagua's impeachment case, indicating the high judicial scrutiny such matters attract.

The High Court's decision to uphold the impeachment of former Deputy President Rigathi Gachagua, while simultaneously acknowledging a violation of his fair hearing rights, presents a critical juncture in Kenya's constitutional jurisprudence. The impending appeal to the Court of Appeal will be a defining moment for the interpretation of the delicate balance between parliamentary supremacy in impeachment proceedings and the judiciary's constitutional mandate to safeguard individual rights and ensure due process. Practitioners must closely monitor this appeal, as its outcome will clarify the limits of judicial intervention in political processes and the remedies available when constitutional rights are infringed during such proceedings.

For legal professionals, this case highlights the importance of meticulous adherence to procedural fairness in all legislative processes, particularly those with severe consequences like impeachment. The High Court's award of damages, despite upholding the impeachment, signals that procedural irregularities, even if not leading to nullification, can still attract significant legal consequences. The Court of Appeal's decision will provide crucial guidance on whether a fundamental breach of fair hearing can truly be severed from the substantive outcome of an impeachment, or if such a breach inherently taints the entire process, potentially setting a new standard for accountability in Kenya's political landscape.