Lawyers disagree with High Court verdict on Gachagua's impeachment

Former Deputy President Rigathi Gachagua. [File, Standard]

Lawyers have torn into the High Court ruling that upheld former Deputy President Rigathi Gachagua's impeachment despite finding the Senate denied him a fair hearing.

A three-judge bench on Monday, June 8, found that Gachagua was not given a chance to be heard by the Senate but upheld his removal from office and awarded him Sh50 million in damages.

Justices Eric Ogola, Anthony Mrima and Freda Mugambi held that there was sufficient public participation in the process and that public remarks by National Assembly Speaker Moses Wetang'ula and Senate Speaker Amason Kingi did not constitute bias.

They left his benefits claim to a separate court.

Law Society of Kenya (LSK) President Charles Kanjama said the ruling defied 22 years of legal practice.

"Normally, when a right to fair trial or fair hearing is infringed, you invalidate the hearing, you set it aside, or you order a new trial," said Kanjama.

He noted it was the first time in his career that a court had found a fair trial violation but declined to reverse the outcome.

"There is a lot of inconsistency in the decision of the court," he added.

Former Judicial Service Commission (JSC) Commissioner Macharia Njeru warned the ruling had created a dangerous precedent, drawing a parallel with the Supreme Court's nullification of the 2017 presidential election.

"The Supreme Court of Kenya in 2017 nullified the presidential election where millions of Kenyans had voted on the basis of procedural defects. They said it did not matter the outcome as long as the process was tainted with irregularities and illegalities," noted Njeru.

LSK Vice President Wavinya Nicholas warned the ruling set a precedent that constitutional rights could be violated and compensated with damages rather than reversed.

"It appears to endorse the notion that a public officer can be removed through a process that violates fundamental constitutional rights, yet the resulting removal or replacement is permitted to stand," observed Wavinya.

"If the process was fundamentally unconstitutional, one would ordinarily expect the resulting decision to be similarly tainted." 

People's Liberation Party (PLP) leader and Senior Counsel Martha Karua said an unfair process cannot produce a just outcome.

"Once the court found that the right to fair hearing had been violated, it was duty bound to nullify the impeachment proceedings. Damages cannot be a substitute for the right to fair hearing, and this pronouncement is a blot on our jurisprudence," said Karua.

Former LSK President Faith Odhiambo called for reflection on what she described as incoherence in the court's remedial reasoning.

"I respect the court and the constitutional role it plays. But I believe this outcome calls for serious reflection on the coherence of our remedial framework," said Odhiambo.

She argued the right to a fair hearing was not a "procedural decoration" but a constitutional guarantee.

Senior Counsel Ahmednasir Abdullahi questioned how the court could find Gachagua was denied a fair hearing yet decline to overturn his impeachment.

"The Gachagua judgment in my humble opinion is on shaky, shallow, soggy and sandy soil," observed Ahmednasir.

Lawyer Joshua Malidzo framed the issue as one of institutional integrity rather than Gachagua's personal fate.

"It is a treason against the Constitution and it must be called out openly and bluntly," said Malidzo.

Lawyer Eric Muriuki said Gachagua may face difficulties at the Court of Appeal  since the violation involved a non-derogable right.

"The real absurdity is declaring that someone's rights were infringed, especially the right to fair hearing, then holding that the process stands either way," noted Muriuki.

Lawyer Mohamed Billow argued Gachagua's best remaining ground lies in the finding that he was denied a fair hearing at the Senate stage by an upper court.

Senior Counsel Abdikadir Mohamed struck the lone dissenting note, arguing impeachment is not litigation and fair-trial standards do not apply to it.

"The 'fair trial' standards you good lawyers are trying to import into the impeachment process are imprudent," said Abdikadir.

He further argued that impeachment is a political process initiated, prosecuted and adjudicated by politicians.

Lawyer Peter Wanyama said that until the Supreme Court makes its decision on Gachagua’s impeachment he can still vie for presidency.

“According to the Constitution, a person is not disqualified from running for election unless all avenues for appeal have been exhausted. Therefore, for those on the opposite side, it is premature to celebrate or lament the High Court's decision. The process is not yet complete.”