NAIROBI, Kenya — Faith Odhiambo has raised concerns about the legal and constitutional implications of the High Court judgment that upheld the impeachment of former Deputy President Rigathi Gachagua despite finding that his right to a fair hearing had been violated during Senate proceedings.
In a detailed statement issued on Tuesday, the Law Society of Kenya (LSK) President said the decision presents important constitutional questions about the relationship between procedural fairness and the validity of outcomes reached through flawed processes.
The three-judge bench found that the Senate violated Gachagua’s rights under Article 50 of the Constitution by declining to grant an adjournment when he was unable to attend the impeachment proceedings. While the court issued a declaratory order and awarded Sh50 million in constitutional damages, it nonetheless upheld the impeachment.
Odhiambo said the ruling deserves careful reflection.
“I respect the court and the constitutional role it plays. But I believe this outcome calls for serious reflection on the coherence of our remedial framework,” she stated.
Questions over constitutional remedies
According to Odhiambo, the central issue is whether a constitutional violation serious enough to warrant a judicial declaration and substantial damages should also have consequences for the outcome of the process itself.
“The right to a fair hearing is not procedural decoration. It is a substantive constitutional guarantee, particularly in proceedings that result in the removal of a person from high public office,” she said.
She argued that courts must carefully consider what it means to vindicate a constitutional right while simultaneously preserving the result that emerged from a process found to have violated that right.
While acknowledging the complexity of the case, Odhiambo said the distinction between recognizing a violation and sustaining the outcome must be clearly justified.
Comparison with 2017 presidential election ruling
Odhiambo drew parallels with the landmark 2017 presidential election petition decided by the Supreme Court of Kenya under then Chief Justice David Maraga.
In that decision, the court nullified the presidential election after finding that the process did not comply with constitutional and legal standards.
“The court found that irregularities and illegalities in the transmission of results had compromised the integrity of the election and that the constitutional standard required more than a plausible result — it required a process that was itself constitutionally compliant,” Odhiambo noted.
She said the principle established in 2017 was that a flawed process cannot automatically produce a constitutionally valid outcome.
Concern about future impeachment proceedings
Odhiambo cautioned that the latest ruling could create a precedent that weakens constitutional accountability in future impeachment proceedings.
“If a constitutional violation during impeachment proceedings can be remedied by damages without disturbing the outcome, future Parliaments and Senates may not feel the full weight of their constitutional obligations when handling removal proceedings,” she warned.
She noted that the High Court itself emphasized the need for Parliament to enact legislation under Article 150 of the Constitution to provide a clear framework for the removal of a Deputy President.
According to Odhiambo, the absence of such legislation has left significant procedural gaps in one of the country’s most consequential constitutional processes.
Call for stronger constitutional safeguards
The LSK Former President concluded by stressing that Kenya’s constitutional democracy depends on the integrity of both process and outcome.
“A constitutional democracy is built on the integrity of its processes, not merely its outcomes,” she said.
She urged lawmakers, legal scholars, and the judiciary to continue examining the implications of the ruling to ensure that the right to a fair hearing remains substantive and enforceable in future constitutional disputes.
