Part II: The Remedy Question, Electoral Sovereignty, and the Limits of Judicial Intervention
By Edris Omondi (Advocate)
edris@crimeprevention.net
Edris Omondi is a lawyer and a crime prevention practitioner and the Executive Director of the Crime Prevention Initiative Trust (CPIT), Kisumu. He works on behavioural approaches to crime prevention, governance, and social policy.
The publication of my earlier article, “When Impeachment Becomes Wrongful Termination: The Constitutional Question Facing Kenya’s Courts,” generated extensive reactions from lawyers, judges, law students, political actors, and ordinary Kenyans across the country.
What has been particularly encouraging is not whether readers agreed or disagreed with the arguments advanced. Rather, it is the realisation that many Kenyans are increasingly taking time to read court judgments, interrogate constitutional questions, and engage critically with legal reasoning. Constitutional democracy thrives when citizens move beyond political slogans and begin examining the legal foundations upon which State power is exercised.
Several readers raised thoughtful questions that deserve further analysis. Some agreed that impeachment cannot be equated to ordinary employment termination. Others questioned the nature of the remedy granted by the court. A number pointed to historical constitutional controversies where courts identified violations but left unresolved the structural issues that made those violations possible.
These observations raise a broader question that goes beyond the impeachment of former Deputy President Rigathi Gachagua:
When courts identify constitutional wrongdoing, are they merely compensating victims, or are they restoring constitutional order?
That question may ultimately define the legacy of this case.
The Forgotten Principle: Courts Only Determine What Is Brought Before Them
One of the most important observations emerging from public debate concerns the appellate process itself.
Many commentators have assumed that the Court of Appeal of Kenya will automatically address every constitutional issue arising from the impeachment.
That is not how appellate litigation works.
Courts do not roam freely through constitutional controversies searching for issues to determine. They are constrained by the pleadings, grounds of appeal, evidence, and legal arguments presented before them.
This is a critical point.
The Court of Appeal may very well agree that profound constitutional questions exist regarding: the nature of Senate impeachment proceedings; the relationship between popular sovereignty and impeachment; the scope of remedies available after unconstitutional removal; and the institutional consequences of an unlawful impeachment.
However, the court can only determine those questions if they are properly raised and argued by the parties.
The quality of the appeal may therefore become just as important as the quality of the judgment being challenged.
The Constitution can only answer questions that litigants actually ask.
The Jurisdictional Puzzle Remains
Among the most compelling observations raised after publication of the first article concerns jurisdiction.
If the injury suffered was essentially personal and compensable, what distinguishes it from a wrongful removal dispute?
This question is not merely academic.
Kenya’s constitutional architecture deliberately created specialised courts, including the Employment and Labour Relations Court, to handle employment and labour disputes.
No serious constitutional scholar would argue that the office of Deputy President is an ordinary employment relationship. The Deputy President is not recruited through an employment contract, supervised by an employer, or removable through ordinary disciplinary procedures.
The office exists because the people created it through the Constitution and fill it through elections.
Yet this is precisely why some observers find the remedy difficult to reconcile with the reasoning.
The more the remedy resembles compensation for loss of office, the more one is tempted to ask whether the constitutional injury has been transformed into something resembling wrongful dismissal.
And if it has, what does that mean for the constitutional character of impeachment itself?
These questions deserve serious appellate consideration.
Can Courts Award What Was Never Asked For?
Another concern repeatedly raised by readers relates to judicial remedies.
Kenyan jurisprudence has long maintained that parties are generally bound by their pleadings.
Courts determine disputes presented before them; they do not ordinarily invent claims or remedies that litigants never sought.
Constitutional litigation admittedly provides greater flexibility.
Courts are empowered under Article 23 to craft innovative remedies capable of vindicating constitutional rights and freedoms.
But even constitutional remedies require legal justification.
They must be anchored in principle.
They must be supported by evidence.
They must be rationally connected to the constitutional injury identified.
This is where the debate becomes particularly interesting.
If compensation was appropriate, how was the figure determined? What constitutional principle guided the award? What evidence informed the quantum? And perhaps most importantly, what constitutional objective was the award intended to achieve?
The answers to these questions may become central issues on appeal.
The Lessons From Kenya’s Electoral Jurisprudence
Several readers drew comparisons with the historic presidential election petition of 2017.
Whether one agrees with those comparisons or not, they raise an important constitutional concern.
The Supreme Court’s decision to nullify the presidential election was celebrated globally as a bold affirmation of constitutional supremacy.
The court found that constitutional and legal standards had not been met.
Yet many observers argued that while the election was nullified, the deeper institutional failures that produced the irregularities were never comprehensively resolved.
The subsequent political developments, including the boycott of the repeat election by Raila Odinga, exposed the difficulty of addressing constitutional violations without fully curing their underlying causes.
The lesson is not that the court was wrong to intervene.
Rather, the lesson is that constitutional remedies must be capable of addressing the constitutional problem itself.
Otherwise, courts risk treating symptoms while leaving the disease untouched.
That concern now resurfaces in the impeachment debate.
If the Senate’s process was indeed unconstitutional, then the question is not merely whether someone should be compensated.
The larger question is whether the constitutional defect that produced the unlawful outcome has been corrected.
The Sovereignty Question
At the heart of this matter lies Article 1 of the Constitution.
Sovereign power belongs to the people.
The President and Deputy President derive their authority directly from voters.
This makes impeachment fundamentally different from disciplinary proceedings involving public officers.
An impeachment does not merely affect the office holder.
It alters the outcome of a democratic choice.
This is why some constitutional scholars argue that an unlawful impeachment creates two distinct injuries.
The first injury is personal. The office holder loses office, status, benefits, and reputation.
The second injury is constitutional. The electorate loses the benefit of its political choice through a process that may not have complied with constitutional standards.
Compensation can address the first injury.
Whether it can address the second remains an open constitutional question.
The Court of Appeal’s Constitutional Opportunity
The appeal presents a rare opportunity for constitutional clarification.
The Court of Appeal need not determine whether one supports or opposes Gachagua.
It need not enter political contests.
Its task is much larger.
The court has an opportunity to define: the constitutional nature of impeachment; the obligations imposed upon the Senate when exercising impeachment powers; the distinction between personal rights and institutional constitutional duties; the relationship between popular sovereignty and parliamentary accountability; and the remedies available when constitutional office holders are removed through defective processes.
These issues will outlive the current political moment.
Future Presidents, Deputy Presidents, Governors, and other constitutional office holders may all be affected by the principles established in this litigation.
A Case Bigger Than Its Parties
Ultimately, the significance of this case lies in the fact that it is no longer merely about one politician.
It is about how constitutional democracies respond when institutions exercise immense power.
The Constitution anticipates that mistakes will occur.
It anticipates that public bodies may occasionally exceed their authority.
What matters is how the legal system responds.
Does it merely compensate individuals after the fact? Or does it restore and protect the constitutional order that has been disturbed?
That is the question now moving toward the appellate courts.
And it is a question that every Kenyan, regardless of political persuasion, should care about.
For constitutional democracy is not tested when institutions behave perfectly.
It is tested when they do not.
And the true measure of constitutionalism is not whether courts can identify wrongdoing, but whether they can fashion remedies that protect both individual rights and the sovereignty of the people.
