Many unpalatable adjectives have been used by lawyers to describe the High Court decision on former Deputy President Rigathi Gachagua's impeachment case.
Donald Kipkorir has termed it 'judicial absurdity', and Ahmednasir Abdullahi has accused the court of making 'quasi-constitutional excuses'. Former LSK chair has termed the decision 'judicial gymnastics' while lawyer Ndong Evance has described it as 'judicial nonsense'.
These are strong words and express the lawyers' disgruntlement with the decision of the three-judge bench on Monday. And they have good reasons to be disappointed.
The judges appeared to bend the rules of natural justice when they ruled that the Senate violated Gachagua’s rights by failing to adjourn when they were informed by his lawyers that he had been taken ill, but decided to swap his right to a fair trial for damages.
The right to a fair trial under Article 25 is non-derogable; it cannot be limited, suspended, or derogated from under any circumstances, not even with the Sh50 million in damages that the judges awarded Mr Gachagua.
After establishing that Gachagua's rights were violated, a fairer decision by the judges would have been to either order a fresh hearing at the Senate or to quash his impeachment and consequently direct his return to office.
Secondly, while the High Court has seemingly punished the Senate for botching the impeachment process, it is the ordinary Kenyans who will bear the burden of paying Gachagua the damages. A punishment that would have directly hurt the senators, the offending parties, would have been more appropriate.
But it is the precedent that this judgment sets that is even more worrying - the paying of damages to political leaders impeached through unfair processes in Parliament. The right to a fair trial must never be sacrificed on the altar of damages, however handsome the amount is. Let's hope that the Court of Appeal will right this wrong.
