A Critical Review of the Gachagua Impeachment Judgment
Socrates, perhaps the finest mind ever to wrestle with the meaning of justice, left us an enduring measure of the good judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially.
By that measure, the three-judge bench that heard the Gachagua impeachment petitions managed the first virtue, twenty months of proceedings and a 350-page judgment are nothing if not patient, but it stumbled badly on the other three. It did not answer wisely, it did not consider soberly, and, most troubling of all, it did not decide impartially. Its judgment earns an unhappy place in the catalogue of infamous decisions of our superior courts.
A Catalogue of Infamy
That catalogue is older and longer than many care to remember. Its entries include:
- the S.M. Otieno burial saga, in which the courts held that a Kenyan could not shed his native customary law merely by adopting a modern way of life;
- Kibaki v Moi (1999), where a presidential election petition collapsed on the technical trap of personal service;
- Raila Odinga v IEBC (2013), where evidence of irregularities was struck out for being filed a few hours late;
- Republic v Gibson Kamau Kuria (1987), where Justice Gicheru dismissed a constitutional petition for the want of procedural rules;
- Matiba v Moi (1993), where the petition was thrown out because Matiba, felled by a stroke, had signed it through his wife under a power of attorney;
- Mwangi Stephen Muriithi v Moi, where the Supreme Court accepted that the applicant’s rights had been violated and his 1982 detention was unlawful, yet declined any remedy because the matter was not a question of general public importance; and
- Martin Charo v Republic [2016], where the now-disgraced Justice Chitembwe overturned a defilement conviction with the notorious remark that a child who behaves like an adult and willingly sneaks into men’s houses for sex should be treated as a grownup who knows what she is doing. The child was thirteen.
The Gachagua judgment now keeps that company.
It is so muddled that little sense can be wrung from it. One is left wondering whether the judges began with the conclusion they, or someone, wanted, and then reasoned backwards to dress it up. It has the look of a garment cut to no measurement at all, then pinned and tucked until it could be forced onto the wearer. Reasoning is meant to lead to a result; here the result seems to have led the reasoning.
The Price of Playing Politics
Decisions like this, in which judges choose politics over durable principle, exact a heavy toll on the State. It was precisely this kind of judicial timidity that led Raila Odinga to conclude, in 2008, that there was no point taking grievances to court. Many agreed with him, and the country paid for that despair in the currency of post-election violence. The vetting of judges and magistrates that followed was itself a verdict on a judiciary that had lost the people’s trust. The Gachagua judgment threatens to march us back toward those dark days, when the courts could not be relied upon to right a wrong.
The Irreversibility Fallacy
The judgment also unravels much of the hard-won jurisprudence on public participation in governance. On whether a special Senate committee was mandatory, the bench analyzed the question admirably, and then performed an about-turn, deferring to the Supreme Court’s decision in the Mike Sonko governor impeachment without so much as distinguishing it. The least it owed us was a reasoned distinction.
Worse still is the bench’s assertion that, unlike a governor’s impeachment, which a court may undo, the impeachment of a Deputy President or President is forever irreversible, a fait accompli. With respect: are these not the same judges who, at the conservatory orders stage, assured the nation that the court could unravel anything done in pursuance of an illegality? Were they misleading us then, or are they misleading us now? Reasoning of this kind hands legislators a license to misbehave. Today the casualty is Gachagua; tomorrow it may be a cherished leader toppled in a legislative coup that no court will dare touch, because the judges have now declared, with their own mouths, that they cannot.
An Inadequate Remedy
On remedy, the bench would have done well to borrow from the law of employment. Courts routinely find a dismissal unlawful, wrongful or unfair and yet decline to order reinstatement. Having found, as this bench did, that Gachagua was denied a fair hearing when the Senate Speaker refused him an adjournment, the proper course was a firm declaration that the process was unlawful. Reinstatement was rightly kept off the table: Gachagua himself had abandoned that prayer, and once he did, no co-petitioner could revive it on his behalf. So far, the bench is on defensible ground. The fault lies in the figure it attached to the wrong. Constitutional damages of Ksh 50,000,000 are grossly inadequate; the fees of Gachagua’s own legal team may well swallow the entire award and leave him nothing for the indignity he endured.
The Real Question: Can Gachagua Vie Again?
The most consequential question, however, is one the judgment leaves frustratingly unresolved: can Rigathi Gachagua ever again vie for public office? By upholding the impeachment, the bench invites the argument, borrowed from the Sonko precedent, that an impeached leader is barred for life.
I take the opposite view, and the Constitution stands behind it.
The foundation for any lifetime bar is Article 75(3), which provides:
A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.
The qualifications for the presidency, set out in Article 137(1), require that a candidate first be qualified to stand for election as a Member of Parliament. And Article 99(2)(h) disqualifies a person from being a Member of Parliament if they have been,
found, in accordance with any law, to have misused or abused a state office or public office or in any way to have contravened Chapter Six.
The operative word in each provision is found. Disqualification does not flow from the bare fact of removal; it flows from a finding, reached “in accordance with any law”, that the leader contravened Chapter Six. Here lies the decisive point. The very court that upheld Gachagua’s removal also held that he was never afforded a fair hearing: the Senate denied him the adjournment he needed, and he never put his defense. There was, in consequence, no lawful finding of culpability. The impeachment has been upheld; its reasons have not. A finding of guilt arrived at in breach of the right to be heard is, for this purpose, no finding at all.
It follows that the predicate for disqualification under Articles 75(3) and 99(2)(h), a valid finding of a Chapter Six contravention, simply does not exist. Gachagua therefore remains eligible to vie.
Conclusion
I concede that the bench gave no clear answer on this question; it left an untidy smudge where a clean line was called for. One hopes that another court will, in time, be seized of the opportunity to settle it.
Socrates asked of judges that they decide impartially. On the evidence of this judgment, impartiality remains an aspiration rather than an achievement. Until our courts learn to cut the verdict to fit the law, rather than the law to fit the verdict, decisions like this one will keep finding their way into the catalogue of infamy.
Want to dive deeper into the legal arguments? Read the High Court Document Outlining the Case Framework and Petitioner Submissions HERE
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