By Jeff Kizzilah Digital Editor
Former Law Society of Kenya (LSK) President Faith Odhiambo has called for deeper constitutional reflection following the High Court’s judgment on the impeachment of former Deputy President , arguing that the ruling raises fundamental questions about the relationship between constitutional violations and the validity of political processes.
Odhiambo noted that the three-judge bench found that the Senate violated Gachagua’s constitutional right to a fair hearing under Article 50 by declining to grant an adjournment when he was unable to attend the impeachment proceedings. The court subsequently issued a declaratory order and awarded KSh50 million in constitutional damages.
However, despite acknowledging the violation, the court upheld the impeachment process and its outcome.
According to Odhiambo, this creates an important constitutional dilemma that Kenya’s jurisprudence must confront honestly.
“The right to a fair hearing is not merely a procedural requirement. It is a substantive constitutional guarantee, especially in proceedings involving the removal of a person from high public office,” she stated.
Odhiambo argued that if the constitutional violation was serious enough to justify a declaration and substantial damages, then legitimate questions arise as to whether the same violation could have tainted the entire impeachment process.
Drawing comparisons with the 2017 presidential election petition, she recalled how the Supreme Court, led by former Chief Justice , nullified a presidential election due to constitutional and legal irregularities in the process, despite not determining that the outcome itself was necessarily incorrect.
“The principle established in 2017 was clear: a flawed process cannot produce a constitutionally valid outcome. That principle remains one of the pillars of Kenya’s public law framework,” she observed.
While acknowledging that courts possess discretion in crafting remedies, Odhiambo emphasized that distinctions between different constitutional outcomes must be clearly explained and justified to maintain public confidence in the legal system.
She further warned that the precedent emerging from the judgment could have long-term implications for future impeachment proceedings.
“If constitutional violations during impeachment can be remedied through damages while leaving the outcome intact, future legislative bodies may not fully appreciate the seriousness of their constitutional obligations,” she said.
Odhiambo welcomed the court’s observation that Parliament should urgently enact a dedicated statutory framework under Article 150 of the Constitution to govern the removal of a Deputy President, describing the absence of such legislation as a significant gap in Kenya’s constitutional architecture.
She concluded by emphasizing that constitutional democracy depends not only on outcomes but also on the integrity of the processes through which those outcomes are achieved.
“We must ensure that the right to a fair hearing remains substantive and effective, not merely symbolic. The strength of our constitutional order lies in the credibility of both process and result,” she stated.
