Gachagua ruling exposes dangerous contradictions

Former Deputy President Rigathi Gachagua.[Standard, File]

One of the basic principles of constitutional democracy states that a process that violates fundamental rights cannot produce a legitimate outcome.  That is so basic that it forms the foundation of modern constitutionalism, administrative justice and the rule of law.

It is, therefore, understandable why many Kenyans are puzzled by the High Court’s decision on the impeachment of former Deputy President Rigathi Gachagua on Monday.

The court made two findings that appear difficult to reconcile. First, it found that Gachagua’s constitutional right to a fair hearing was violated during the impeachment process. Second, it declined to quash the impeachment itself, upholding the outcome of a flawed process. The court then awarded him Sh50 million in damages for the violation of right.

So, if the process was constitutionally defective, how can its product be constitutionally valid?

The question goes beyond Gachagua; It goes to the heart of constitutional governance. The law does not treat fair hearing as a procedural luxury or optional courtesy extended to individuals at the discretion of public institutions. It is a substantive constitutional guarantee protected under Article 50 and reinforced throughout the constitutional architecture.

A fair hearing exists precisely to prevent public power from being exercised arbitrarily. We do not protect the right to be heard because hearing someone is pleasant but because outcomes reached through unfair procedures cannot be trusted.

That is why courts across democratic jurisdictions have consistently held that where a decision is reached through a process that violates fundamental procedural rights, the normal remedy is to set aside the decision and require the process to be undertaken lawfully. Simply, one cannot build legality upon illegality.

If a violation serious enough to attract Sh50 million in damages is insufficient to invalidate the resulting decision, then what practical protection does the right to a fair hearing actually provide?

The danger lies in the precedent the judgement may establish. If decision-makers know that constitutional violations can be cured through monetary compensation while preserving the desired outcome, the incentive to respect due process becomes significantly weaker.

The Constitution was designed to prevent exactly that. Rights are not supposed to be priced. A government institution should never be allowed to conclude that violating constitutional rights is acceptable so long as taxpayers can later pay damages. The remedy for constitutional wrongdoing should ordinarily be the restoration of constitutional order, not merely financial compensation.

This is why many legal scholars are likely to focus less on the amount awarded and more on the remedy denied. What is the consequence of a proven violation of fair hearing rights? If the answer is compensation alone, then constitutional protections risk becoming symbolic rather than substantive.

The judgement becomes even more significant when viewed alongside another finding of the court: Parliament must enact legislation regulating impeachment procedures under Article 150. This is itself a notable observation.

Protecting constitutional rights

By this directive, the court effectively acknowledges the existence of significant procedural uncertainty within the impeachment framework. That acknowledgement further strengthens the argument that strict constitutional safeguards should have been applied in this case. Where procedures are unclear, courts ordinarily become more vigilant in protecting constitutional rights, not less.

The Judiciary’s role in constitutional democracies is not merely to identify rights violations, but to provide effective remedies for such. That’s why the judgement may face intense scrutiny at the Court of Appeal.

The appellate court will inevitably be asked to address the central contradiction of the case. Can a process be constitutionally unfair and constitutionally effective at the same time? Can a public officer be denied a fair hearing yet still lawfully lose office through the very process that violated that right? Can the Constitution acknowledge a wrong but leave its consequences untouched?

These are not political but constitutional questions that the Court of Appeal should provide clarity on. It must determine whether the finding of a violated fair hearing right can coexist with a valid impeachment outcome, or whether constitutional logic requires that the outcome itself be revisited.

Whatever one’s political opinion of Gachagua, the issue transcends personalities. The constitutional principle must remain the same irrespective of the subject in question.

If the right to a fair hearing means anything, then its violation must carry consequences capable of restoring constitutional integrity. Otherwise, we risk arriving at a constitutional order in which rights may be acknowledged, compensated and celebrated in theory, while the unconstitutional consequences of their violation remain firmly in place. That would be a precedent far more significant than the fate of any individual politician. And it is precisely why this judgement deserves careful reconsideration on appeal.

Prof Naituli is a Fellow of the Kenya National Academy of Sciences, and Teaches Constitutionalism and Governance at the Multimedia University of Kenya