Former Chief Justice David Maraga has said that once the court found Rigathi Gachagua was denied a fair hearing during his impeachment, it should have cancelled the entire process.
Maraga warned that awarding compensation instead could encourage leaders to violate constitutional rights and simply pay damages later.
“The court finds that Honourable Gachagua was not given a fair hearing and he has been impeached. In my view, after that finding, the inevitable conclusion should have been to annul that impeachment,” Maraga said in an intervew with Spice FM.
The United Green Movement (UGM) Party Leader acknowledged the court’s reasoning, that the process had already concluded, a new Deputy President had been appointed, and certain acts could not be reversed, but pushed back on that logic.
“In Gachagua’s petition, he actually said he doesn’t want reinstatement as Deputy President. He made it very clear to the court. When the right to a fair hearing is sacrosanct, the proper interpretation in my view is to annul what the Senate had done,” he stated.
Maraga criticised the court’s decision to award compensation through the Senate, saying it weakens accountability.
He argued that those responsible for violating constitutional rights should be held personally accountable rather than having taxpayers bear the cost.
“Government officers will continue violating the Constitution knowing that they will not be punished individually. We will be entrenching the culture of impunity,” he warned.
The presidential aspirant also drew on Article 25 of the Constitution, which lists the right to fair hearing among the rights that cannot be limited under any circumstances.
“The right to a fair hearing is sacrosanct. What does that mean? The wording in the Constitution is that it cannot be limited,” he said, adding that allowing the impeachment to stand despite that violation sends the message that constitutional rights can be trampled upon in exchange for a financial settlement, with life simply moving on.
Maraga also addressed a separate but related constitutional question, his 2020 advisory to President Kenyatta to dissolve Parliament over its failure to enact the two-thirds gender rule after more than nine years and four court orders.
A High Court recently declared that advisory unconstitutional on the narrow ground that the court order had not been formally transmitted to the Speakers of Parliament.
Maraga questioned the reasoning, noting that Parliament’s own lawyers were present when the order was passed and that Parliament had actually appealed the order, and lost.
“You have to read the spirit of the Constitution. The same Constitution says substantive justice should not be undermined by procedural technicalities, Article 159(d),” he said.
