Prof Migai Akech, one of Kenya’s most respected constitutional scholars, has delivered perhaps the most devastating legal critique yet of the High Court judgment that upheld the impeachment of former Deputy President Rigathi Gachagua.
At the heart of Akech’s argument is a simple but powerful principle: a flawed process cannot produce a valid result.
“A flawed process can only produce a flawed outcome. No fair hearing, no fair outcome,” he said.
The three-judge bench determined that Gachagua had violated his right to a fair hearing during the impeachment process.
Yet it declined to overturn the Senate’s decision, instead awarding him KSh50 million in compensation.
To Prof Akech, that conclusion simply does not add up.
“The only remedy in such a case is for the court to void the process and its outcome and order the decision-maker, the Senate in this case, to make a fresh decision.”
He questioned the legal basis upon which the court arrived at the KSh50 million figure, arguing that once judges determined the hearing was unfair, their role was not to calculate damages while preserving the outcome but to send the matter back for a constitutionally compliant hearing.
“On what basis does the High Court determine that Riggy G should have KSh50 million as compensation for the violation of his right to a fair hearing?”
The professor also pointed to what he sees as a glaring contradiction in the ruling.
“The High Court says Gachagua was not given a fair hearing. This finding must vitiate the impeachment, as a matter of course.”
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His criticism echoes a growing chorus of lawyers and legal scholars who argue that the judgment has created a constitutional paradox: finding a violation of fundamental rights while leaving intact the very decision produced by that violation.
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