High Court decision on Gachagua's impeachment case is injudicious

A judge is an honourable person and is expected to deliver reasonable decisions always. The reasoning in the case  of Rigathi Gachagua brings to the fore urgent questions about the strange and contradictory analysis and final decision of the honourable judges. I will not bother you with the agony and anxiety I endured sitting for four straight hours that it took the three judges to read through the judgment. You will accuse me of dozing while the judges, oozing wisdom, dissected the case.

But I do remember one of them reading out that the Senate denied Mr Gachagua his right to a fair trial when it declined to adjourn the impeachment motion to allow him time to recuperate from his illness and appear personally before the Senate. This was a fundamental finding by the court. The finding that the Senate in fact erred in locking Gachagua out of his own case is fatal to the respondent's case. This refusal goes to the very heartbeat of the case.

Even if we assume that all other actions, activities and conduct of all the players in the impeachment process were done legitimately and above board, nothing can cure this all-important missed step.

The right to a fair trial is the fulcrum of a judicial process. Article 50(f) of the Constitution directs that an accused person has a right to a fair process and his physical presence is paramount unless his conduct makes it impossible for smooth proceedings in the court or tribunal. At the time of the impeachment proceedings, Gachagua was a man of sound mind and a serving deputy president. He had been taken ill and all he requested was time to get well and personally appear and face his accusers physically - omundu khu mundu. This wasn't too much to ask, or was it?

In my opinion, the moment the three learned judges agreed that Gachagua's right to a fair trial had been compromised by the Senate, they needed to have 'rested'. I mean, the case was over. The matter dispensed with. The trial otiose. The file closed.

Anything else that the Senate or the courts or anyone else did after denying an accused person his right to a fair trial and delivering a grossly unfair administrative action against him, anything else immediately collapsed under the weight of this most critical misstep. A flawed process, as is the case here, undermines the validity of the outcome.

In logic and mathematics, if an underlying premise or step is flawed, it negates the conclusion. Once the initial rules or calculations are flawed, the output is inherently invalid.

In formal logic, this is known as the principle of 'garbage in, garbage out'. Once the Senate committed that cardinal sin against Gachagua, anything else they did thereafter was garbage. It is a trite principle of law that a flawed process typically invalidates the result. A valid process is the only way to guarantee a legitimate outcome. The Senate way grossly undermined the integrity, fairness and reliability of whatever it produced.

And nobody knows this principle better than the three learned judges. The court, having made a finding that the Senate erred in locking Gachagua out of his own case and hence denying him his fundamental right to a fair trial was a direct indictment of the Senate. But trust the three learned judges to come up with "substantial versus harmless error". Was the Senate action to keep Gachagua out of his own case a substantial error or harmless error? As harmless as sacking a deputy president, I dare say!

Another very curious by-product of the judgment: The court awarded Gachagua Sh50 million. What for? Yes, because his fundamental rights were infringed upon. When, where and how? During his trial at the Senate. Really? Again, in my opinion, this is a dangerous precedent from that court. 

This decision to award Gachagua compensation for being mistreated is to take us back to the caves. To take us back to the state of nature. Survival of the fittest. It reminded me of a village bully who tells you, "Nitakutandika na nikulipe".

This decision to award Gachagua compensation for being mistreated is to take us back to the caves. To take us back to the state of nature. Survival of the fittest. It reminded me of a village bully who tells you, "Nitakutandika na nikulipe". Trample on Gachagua's inalienable rights and pay him Sh50 million. But pray, what formula of quantum of damages did the court employ in arriving at the amount?