Gachagua’s Impeachment Judgement Exposes the Absurdity of Accountability and Constitutional Order in Kenya

By Elijah Mbalaria

The High Court’s judgement on the impeachment of former Deputy President Rigathi Gachagua has ignited a firestorm from Kenyan legal scholars, civil society groups, and constitutional purists.

The mechanics of the court’s findings present a profound logical contradiction. On one hand, the High Court confirmed that the impeachment was legally valid. On the other hand, it simultaneously found that Gachagua’s constitutional right to a fair hearing had been flagrantly violated.

Instead of reversing the unlawful process to cure this infringement, the Court awarded Gachagua Ksh 50 million in damages and set the matter to rest. The justification for this compromise has been termed as one of pure pragmatism: because a new Deputy President had already been swiftly sworn into office, reinstating Gachagua would create an inconvenient constitutional crisis of having two individuals concurrently occupying the same office.

What is very concerning about this ruling is the legal precedent it is setting: the doctrine of constitutional fait accompli. Translated into Kenyan politics, it establishes a tradition where if the government moves fast enough while violating a citizen’s rights, the judiciary will ultimately shrug its shoulders and declare the damage irreversible. Speed has increasingly been a tool of choice to plug holes for state impunity, creating loopholes and circumventing constitutional oversight.

The Ksh 50 million compensation should alarm every right-thinking Kenyan. When a legal system begins putting a price tag on fundamental rights instead of enforcing them, it corrodes the foundational rule of law. It reduces the Constitution from a sacred doctrine into a mere insurance policy, where aggressors can basically pay a small fee to trample upon the rights of others. If a wealthy, well-connected Deputy President’s constitutional rights can be bypassed and paid off, the implications for the average citizen are grim.

Kenya must urgently enact laws that establish ironclad safeguards, such as freezing the replacement of a state officer during active judicial appeals, to prevent administrative speed from undermining basic fairness.

The writer is a research assistant at Free Press Publishers.