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 debate surrounding the impeachment of former Deputy President Rigathi Gachagua has largely been reduced to political loyalties. Some view the matter through the lens of personalities, alliances, and political victories. Others see it as a contest between supporters and opponents of an individual.
But beneath the political noise lies a far more important question: what does the Constitution actually require when a democratically elected constitutional office holder is removed from office?
This is not a question of whether one supports or opposes the former Deputy President. It is a question of whether Kenya’s constitutional architecture has been properly understood.
The emerging and anticipated appeals before the Court of Appeal of Kenya will definitely raise profound constitutional issues.
The first task before the Court of Appeal would be to determine whether an unlawful impeachment is merely an injury to an individual removed from office, or whether it is an injury to the constitutional order and for that matter an injury to the voters who entrusted that person with office.
That distinction may determine the future of impeachment law in Kenya.
The Senate: Parliament or Constitutional Tribunal?
The starting point must be the understanding of the special role of the Senate.
Under the Constitution of Kenya, 2010, the Senate is primarily a legislative and representative institution. It represents counties, participates in legislation, and exercises oversight.
However, when it handles impeachment proceedings under Articles 145 and 150, its role changes.
It does not merely debate.
It does not merely take a political vote.
It performs a constitutional adjudicatory function.
In that moment, Senators are not acting only as politicians. They are required to determine whether allegations against a constitutional office holder have been proven through a fair process.
This does not transform the Senate into a court.
It remains Parliament.
But it means that constitutional fairness applies.
A body exercising a power that can remove an elected constitutional office holder must exercise that power within constitutional boundaries.
The Fair Hearing Question
A significant misunderstanding in this debate is the assumption that the issue is simply whether the Deputy President had a personal right to a fair trial before the Senate.
That may not be the correct constitutional framing.
The Senate is not a court where ordinary citizens appear for trials. Its primary role is not judicial.
The issue is broader:
When the Senate exercises an extraordinary constitutional power, does it have a duty to conduct that process fairly?
The answer must be yes.
The obligation arises not merely because the individual before it has personal rights, but because the Constitution demands that public power is exercised lawfully, rationally, and fairly.
The Senate’s responsibility is therefore not only owed to the person facing removal.
It is owed to the Constitution and to the Kenyan people.
The Problem With Treating Impeachment Like Employment Termination
This is where the criticism of the High Court reasoning becomes important.
If the constitutional injury is reduced to a private violation suffered by the individual, the remedy naturally becomes compensation.
The logic becomes: a person was unlawfully removed; therefore, compensate that person.
But impeachment is fundamentally different from ordinary dismissal.
A Deputy President is not an employee.
A Deputy President is elected by the people on a joint ticket with the President.
The office represents the sovereign choice of citizens under Article 1 of the Constitution.
Therefore, if that office is unlawfully taken away, the injury is not limited to the individual.
The injury is also democratic.
The question becomes: can damages restore the constitutional choice of millions of voters?
The answer is difficult to justify.
Money may compensate personal loss. It cannot restore an electoral mandate.
The Constitutional Remedy Question
The real issue before the Court of Appeal is therefore not only whether there was unfairness.
The deeper question is: what should happen when a constitutional institution removes an elected office holder through an unconstitutional process?
There are competing constitutional considerations.
On one hand, courts must respect Parliament’s constitutional space. The Senate has been given the responsibility to determine impeachment matters. Courts should not replace the Senate’s judgment with their own.
But on the other hand, Kenya’s Constitution is built on constitutional supremacy, not parliamentary supremacy. Article 2 makes clear that every State organ is bound by the Constitution. Parliament has power, but that power is not unlimited. A constitutional organ cannot escape constitutional scrutiny merely because it is exercising political authority.
Three Possible Paths for the Court of Appeal
The Court of Appeal has several possible approaches.
First, it could uphold the High Court approach. It could find that constitutional rights were violated and that compensation is an appropriate remedy.
The challenge with this approach is that it risks creating a troubling precedent. A future parliamentary majority could unlawfully remove constitutional office holders and later treat damages as the price of political action. That would transform impeachment from a constitutional safeguard into a financial liability.
Second, it could declare the impeachment invalid. The court could hold that where the Senate fails to conduct a constitutionally fair process, the resulting removal cannot stand.
The principle would be simple: a decision made outside constitutional limits cannot produce a lawful constitutional outcome. This would place constitutional order above political convenience.
Third, it could adopt a middle path. The court could recognise that the process was unconstitutional while developing a remedy that protects both institutional stability and constitutional accountability. Such a remedy could include strong declarations on future impeachment procedures and clarify the constitutional limits of parliamentary power.
The Larger Constitutional Principle
At its heart, this case is not about one man. It is about whether Kenya’s Constitution protects the people’s vote beyond election day.
Elections give leaders authority. But the Constitution determines how that authority can be taken away.
If a constitutional office created by the people can be removed unlawfully and the only consequence is compensation, then the country risks creating a dangerous principle: that constitutional violations can be cured by paying damages after political objectives have already been achieved.
That is why this case matters.
The Court of Appeal has an opportunity not merely to decide the fate of a former Deputy President, but to define whether impeachment in Kenya is a constitutional safeguard or simply another political instrument.
The ultimate question is this: when a constitutional office is unlawfully taken away, who has really been wronged – the person who lost the office, or the people who gave it?
The answer will shape Kenya’s constitutional democracy for generations.
