The ghosts have found a resting place: Dugdale, bad law and remedial evasion in the Gachagua impeachment judgment

Abstract

The High Court’s ruling in Gachagua & 57 others v Speaker, National Assembly & 35 others marks a seminal moment in Kenyan constitutional jurisprudence, offering the first rigorous judicial examination of the impeachment of a Deputy President under the 2010 Constitution. Its importance transcends the immediate political fate of H.E. Rigathi Gachagua, serving instead to resurrect profound and long-standing anxieties regarding the limits of executive and parliamentary power. By affirming the justiciability of impeachment, rejecting an absolutist political-question doctrine, and mandating adherence to the fair-hearing requirements of Articles 47 and 50, the Court acknowledged the constitutional infirmities in the Senate’s proceedings, most notably the denial of an adjournment despite the Deputy President’s indisposition. However, the Court’s subsequent refusal to quash the impeachment, citing constitutional finality, the risks of dual incumbency, and institutional stability, reveals a troubling dissonance. While awarding KShs 50 million in constitutional damages and directing Parliament to codify a statutory framework, the ruling ultimately severs constitutional  rights from constitutional consequence. This article argues that the judgment constitutes \"bad law\" by effectively rendering these acknowledged rights illusory. It represents a contemporary iteration of the \"Dugdale problem\", a judicial culture that conceded rights in principle while dismantling them in practice. Where historical precedent once rendered the Bill of Rights inoperative through procedural voids, the Gachagua judgment achieves a similar outcome through judicial restraint, allowing political momentum and remedial timidity to eclipse constitutional integrity. Through a rigorous analysis of the judgment, an interrogation of Kenyan constitutional doctrine, and an engagement with comparative remedial theory, this article introduces the concepts read more