Maraga Criticises Gachagua Impeachment Ruling, Says Court Should Have Nullified Senate Decision
Former Chief Justice David Maraga says the High Court erred by upholding Rigathi Gachagua’s impeachment after finding that his constitutional right to a fair hearing had been breached.
Former Chief Justice David Maraga. Photo/Courtesy
By Ruth Sang
Maraga kind of takes issue with the High Court ruling on the Gachagua impeachment, says look, once they found that his constitutional right to a fair hearing was messed up, the court should have just wiped out the whole Senate decision. Like, not keep the impeachment standing. Former Chief Justice David Maraga was speaking during an interview on Spice FM on Wednesday, and he was pretty clear about it, saying that the three judge bench basically created this contradiction, they said the rights were violated, but then still let the process stay.
“In my view, after that finding, the inevitable conclusion should have been to annul that impeachment.” Maraga said, adding that when a right to a hearing is sacrosanct, the proper interpretation should be to annul what the Senate had done, not try and compensate after the fact.
He pointed to Article 25(c) of the Constitution, saying it guarantees the right to a fair trial as absolute, and also non-derogable, so anything tainted by that kind of violation, shouldn’t really be allowed to remain.
Now, the High Court bench, comprising Justices Eric Ogola, Anthony Mrima and Freda Mugambi, actually upheld the impeachment of Gachagua but then awarded him KSh50 million in damages, because they said his right to a fair hearing was infringed during the Senate proceedings.
Maraga also warned this judgment might become a very dangerous precedent, because public institutions could end up treating constitutional provisions like they can bend them without serious consequences. He basically argued that officers would keep violating the Constitution, knowing nobody would face personal punishment, and that would entrench impunity in the system.
“If we do not take firm action in some cases, the Constitution becomes a suggestion rather than a command,” Maraga said. He added that in his view, a country can slowly drift into a failed state like that.
Then he brought in comparisons, like the 2017 Presidential Election Ruling, where the Supreme Court nullified the election because the electoral process didn’t meet constitutional standards. His point there was that the court treated the integrity of the process as just as crucial as the final outcome. It’s not only about numbers.
Legal experts have also voiced unease. Some are asking, how can a process that is found to have violated constitutional rights still end up producing a valid outcome. Prominent lawyer Donald Kipkorir called the ruling a “judicial absurdity,” saying the court should have invalidated the impeachment once it found Gachagua’s rights were breached.
Kipkorir put it this way, that the court found constitutional rights were violated, but instead of annulling the process, it chose to compensate him. Former Law Society of Kenya President Faith Odhiambo also questioned whether damages alone were enough, like, the right to a fair hearing is not some sort of procedural decoration, and defects in a process can mess with the legitimacy of whatever decision comes from it.
So now, appeals are looming from both sides. The controversy is expected to roll on at the appellate level after Gachagua rejected the KSh50 million compensation, saying it was inadequate and also inconsistent with the court’s own findings. His legal team, led by Senior Counsel Paul Muite, is preparing to overturn the impeachment entirely.
Their argument has been that once the court found Articles 25, 47 and 50 were violated, the entire impeachment process should have been declared null and void. At the same time, the Senate has announced plans to challenge the ruling, especially the part where it was found that Gachagua’s fair hearing rights were violated.
Senate Speaker Amason Kingi has maintained the High Court got it wrong on interpretation, and that the Senate will seek to overturn that aspect. They’ve also argued that the Judiciary should not interfere with Parliament’s constitutional mandate to carry out impeachment proceedings.
Basically, this sets up what could be a major constitutional battle at the Court of Appeal, where judges will have to figure out how due process, constitutional rights, and the finality of impeachment proceedings, actually relate to each other.
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