The High Court’s ruling on the impeachment of former Deputy President Rigathi Gachagua has drawn comment from Law Society of Kenya President Charles Kanjama, who described the decision as legally inconsistent and unprecedented.
Speaking during an interview, Kanjama said the court had made a clear finding that Gachagua’s right to a fair hearing was violated during the impeachment process but failed to overturn the outcome of the proceedings.
According to Kanjama, courts traditionally invalidate proceedings where a person’s constitutional right to a fair trial or fair hearing has been infringed.
“In most cases, once a court finds that the right to a fair hearing has been violated, the proceedings are set aside. The court may order a fresh hearing or invalidate the process entirely,” he explained.
Court Finds Violation but Upholds Outcome
Kanjama noted that the ruling marks the first time in his legal career that a court has acknowledged a substantive violation of fair trial rights while allowing the resulting decision to remain in force.
He argued that the judges based their reasoning on Article 145 of the Constitution, which governs the impeachment of a Deputy President.
According to the court’s interpretation, impeachment is a final constitutional process whose outcome cannot be reversed once completed. As a result, the judges held that their powers under Article 165 to review decisions made by courts, tribunals, and other quasi-judicial bodies are limited in impeachment matters.
“The court essentially said its hands were tied because impeachment is final and therefore cannot be undone,” Kanjama said.
Questions Over Judicial Consistency
The LSK President also pointed to what he termed a major inconsistency in the court’s position.
He recalled that during the impeachment proceedings, parties had sought court intervention to halt the process, arguing that they would be left without an effective remedy if the impeachment was allowed to proceed.
At the time, he said, the same bench declined to stop the proceedings and assured litigants that the court retained the power to overturn the outcome if constitutional violations were later established.
“Previously, the court said it could overturn the outcome of an impeachment. Today, it has said that once impeachment is completed, it cannot be reversed,” Kanjama observed.
