Former CJ Maraga faults Gachagua ruling, says court should have annulled impeachment

According to Maraga, the High Court judgement had discrepancies after finding that Gachagua's right to a fair hearing was violated, yet he was awarded Ksh.50 million in compensation instead of nullifying the impeachment okayed by the Senate in October 2024.

"In my view, after that finding, the inevitable conclusion should have been to annul that impeachment," he said during an interview with Spice FM on Wednesday.

"When a right to a hearing is sacrosanct, the proper interpretation in my view is to annul what the Senate had done."

He argued that the constitutional provision under Article 25(c) establishes the right to a fair trial as an absolute, non-derogable right.

The former CJ argued that the ruling by Justices Eric Ogola, Anthony Mrima, and Freda Mugambi breached constitutional provisions, possibly allowing legislatures to be less cautious about legal provisions in future impeachment motions.

"Government officers would continue violating the Constitution knowing that they would not be punished individually. We would be entrenching the culture of impunity in our systems," he said.

The 2027 presidential aspirant therefore believes that stamping out illegal acts must come with heavy ramifications but will preserve the integrity of the law.

"If we don't take firm action in some cases, the constitution would be a suggestion and not a command, and that is how a country degenerates slowly into a failed state," he argued.

Interpreting the law

The debate on the interpretation of the constitution is not new to Maraga, as he was at the centre of a contention in 2017 when the Supreme Court, in a four-against-two judge decision, nullified the presidential election over procedural irregularities and ordered a fresh election.

Maraga said the election commission had failed "to conduct the presidential election in a manner consistent with the dictates of the constitution".

Then-opposition leader Raila Odinga moved to reject the re-run results, which granted Uhuru Kenyatta a 98% victory at the ballot.

The late Odinga questioned the legitimacy of the poll, citing ambiguities over electoral law and the way the constitution is interpreted.

A major legal battleground was the interpretation of Section 83 of the Elections Act, which dictated whether an election should be invalidated if non-compliance with the law occurred. 

The courts had to interpret whether petitioners needed to prove that errors affected the final results. 

The Supreme Court ruled that an election could be nullified if the irregularities were substantial enough to violate constitutional principles, shifting the focus from mathematical impact to the integrity of the process itself.

In Gachagua's case, prominent legal minds have expressed dissatisfaction with the ruling by the three-judge bench, terming it dangerous.

Lawyer Donald Kipkorir termed the High Court decision a "Judicial absurdity" or a Reductio ad absurdum.

"Constitutional Division of our High Court holds that the Constitutional Rights of Gachagua were violated but proceeds to compensate him for the violation instead of annulling the process," he argued.

He likened it to a 'Cheptongei Village Tribunal judgement' where: "We agree with you that your neighour cut your fence & stole your cow. We can see the cow in its compound. But we are afraid we can’t return the cow as he has fixed the fence where he had cut. But to compensate you, we will give you a goat!"

Former Law Society of Kenya President Faith Odhiambo opined that the ruling calls for keen reflection on the coherence of Kenya's remedial framework.

"The question that naturally follows is whether that infirmity was capable of tainting the entire removal process. The right to a fair hearing is not a procedural decoration," Odhiambo argued.

Odhiambo also drew contrasts to the 2017 Supreme Court judgement, arguing that the election nullification was not on the basis "that the outcome was necessarily wrong but on the basis that the process through which it was arrived at did not conform to the Constitution and the law."

She maintained that the ruling clarified the principle that a flawed process cannot produce a constitutionally valid outcome, which remains a pillar of our public law.

Odhiambo holds that the ruling on Gachagua's case may establish leeway for the Senate and the National Assembly to not face the repercussions of their mandates "if a constitutional violation during impeachment proceedings can be remedied by damages without disturbing the outcome".

A continued legal battle.

Meanwhile, Gachagua has rejected the Ksh.50 million award, terming it a mockery of his fundamental rights and the Constitution. 

He revealed that his legal team, led by Senior Counsel Paul Muite, would file an appeal at the appellate court, arguing that once the High Court established that his rights under Articles 25, 47, and 50 of the Constitution were breached, the entire ouster process should have been declared null and void. 

The Senate has also vowed to challenge the High Court's decision, as Senate Speaker Amason Kingi says the High Court finding on violation of Gachagua’s right to a fair trial is erroneous and will be one of the grounds of its appeal.

Senators argue that the Judiciary should not interfere with the Senate’s constitutional mandate to conduct impeachment trials.