–Victoria Miyandazi, Assistant Professor in Public Law at the University of Nottingham (UK)
–Munene Njoroge, Advocate of the High Court of Kenya and a Research Fellow at the Strathmore Centre for Law, Policy and Governance
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
Introduction
The impeachment of Kenya’s Deputy President Rigathi Gachagua in October 2024 was one of the most constitutionally momentous events in Kenya’s post-2010 democratic history. Gachagua had been elected in 2022 on a joint presidential ticket with President William Ruto. Two years later, the National Assembly initiated, debated, and passed an impeachment motion against him, and the Senate upheld five of the eleven charges. He ceased to hold office, and Professor Kithure Kindiki was subsequently nominated, approved and sworn in as Deputy President.
In Gachagua & 57 Others v Speaker, National Assembly & 35 Others (8 June 2026 judgment), the High Court was called upon to determine, among other issues, whether this process complied with the Constitution. Much of the immediate concern about the judgment has understandably focused on the Court’s fair trial finding. The Court held that Gachagua’s fair hearing rights had been violated when the Senate refused an adjournment after he fell ill, and proceeded to determine the impeachment in his absence. Yet, the Court declined to quash the impeachment, instead awarding constitutional damages (Ksh. 50 million). That remedial choice is deeply troubling. It risks suggesting that even a serious violation of fair hearing rights in an impeachment process may leave the resulting removal intact.
This article focuses on another equally important aspect of the judgment: whether the National Assembly had discharged its constitutional duty to facilitate meaningful public participation in connection with the impeachment. The Constitutional and Human Rights Division of the High Court ultimately held that the public participation exercise met the requisite constitutional threshold in all material respects [341]. We argue that the Court got this question wrong. While the three-judge bench correctly identified the governing constitutional principles, it failed to apply them with the rigour demanded by a process that displaced the electoral mandate of a nationally elected officeholder. In doing so, the judgment risks lowering the constitutional standard for public participation, one of the Constitution’s most transformative values, into something closer to a purely cosmetic and procedural ‘tick-box’ exercise.
Public Participation as a Constitutional Safeguard in Impeachment
The Court was correct to emphasise at the outset that the impeachment of a Deputy President is not ordinary parliamentary business. It is an ‘irreversible decision’, directly displacing the outcome of a popular election [327]. This is more reason why public participation is important to the impeachment process. Kenya’s 2010 Constitution places public participation at the centre of constitutional democracy. Article 10(2)(a) entrenches public participation as a national value binding all state organs. Article 118 requires Parliament to facilitate public participation and involvement in its legislative and other business. These provisions are not decorative. They were intended to break from a constitutional culture in which public power was exercised from above, with citizens treated as spectators rather than participants.
The High Court acknowledged this: it accepted that public participation is not a gift from the state, but a constitutional obligation that the state is obligated to facilitate, protect, and give full effect to [318]. It also correctly drew on the Supreme Court’s public participation jurisprudence, including British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health (the BAT Case, [96]), which emphasises reasonable notice, clarity of the subject matter, inclusiveness, adequate information, and a genuine opportunity to influence the outcome. The Court also referred to Mui Coal Basin Local Community v Permanent Secretary Ministry of Energy, which recognises that the more consequential a decision, the more robust and substantively engaging the participatory process should be. This was the right starting point. The Court itself acknowledged that ‘the focus ought to be on whether the participation that occurred was real, substantive, and meaningful’, and that the standard ‘is not one of perfection, but equally, it is not one of mere tokenism’ [326]. It further emphasized that public participation in such a context, Deputy President impeachment process, must be both qualitatively and quantitatively meaningful [327].
The difficulty is that the Court did not rigorously follow through on its own standard.
The Facilitation Versus Meaningful Participation Outcome Issue
The Court’s most consequential move was to distinguish between Parliament’s obligation to facilitate public participation and the public’s decision whether to participate [331]. At one level, this distinction is correct. Parliament cannot force citizens to attend meetings, complete forms, or submit views. The constitutional duty is one of facilitation, not guaranteed turnout. In support of this distinction, the Court relied on the Supreme Court’s statement in Cabinet Secretary for the National Treasury and Planning v Okiya Omtatah Okoiti that Parliament’s duty is ‘to facilitate public participation and involvement in the legislative and other business of Parliament’. The Court extended this logic further, holding that ‘what the public chooses to do with that opportunity is a matter of individual and collective civic agency and that agency belongs to the people, not to Parliament.’ The implication was that once Parliament opens the door, constitutional compliance is substantially achieved; how many people walk through it is a matter of individual choice, not institutional failure. According to the Court, the true measure is whether the state discharged its obligation to create conditions in which meaningful participation was genuinely possible.
However, the Court stretched this distinction too far. It effectively treated the creation of an opportunity to participate as sufficient proof of meaningful participation. It relied on the publication of notices, the availability of physical and online submission channels, constituency-level collection points, and the number of responses received. It then concluded that ‘the door was opened widely, accessibly, and in good faith’ [335]. The metaphor is attractive, but misleading. A door can be formally open while remaining functionally inaccessible. It may be inaccessible to those who did not know it existed, those who lacked transport, those who could not understand the material, those who could not engage with the language used, or those who were given insufficient time to form a considered view. The constitutional question is not simply whether the State opened a door. It is whether citizens were realistically enabled to enter, understand, deliberate and respond.
That is where the judgment is weakest.
The Quantitative and Qualitative Dimension
The Court noted that over 223,000 members of the public participated in the process and described this as a considerable level of civic engagement in a single parliamentary exercise. In absolute terms, that number is not insignificant. However, Kenya’s population at the time of the impeachment was approximately 56 million people, meaning that 223,000 participants represented roughly 0.4% of the national population. The Court acknowledged the insistence in the BAT Case that public participation has both quantitative and qualitative dimensions. Yet it treated the headline figure as evidence of meaningful civic engagement without asking whether that level of participation was proportionate to the gravity of the decision at stake.
That is the core difficulty. The impeachment concerned a nationally elected Deputy President. It was not a local planning decision, a minor regulatory amendment, or an ordinary parliamentary consultation. It was a process capable of overturning, mid-term, part of the national electoral mandate. In that context, the relevant question was not simply whether 223,000 is a large number in the abstract. It was whether the scale, distribution and representativeness of participation bore a reasonable relationship to the national character and constitutional gravity of the impeachment process. The Court did not meaningfully confront this question.
This does not mean that public participation in impeachment must resemble a referendum. Nor does it mean that a process is invalid merely because turnout is low. But where the Court itself says the standard should be qualitatively and quantitatively meaningful, it should do more than treat a headline number as self-validating. A large number may still be constitutionally inadequate if the process generating it was rushed, inaccessible, poorly explained or insufficiently deliberative.
The Yes/No Template Problem
The qualitative weakness of the process is even more serious. Members of the public were invited to respond to eleven complex impeachment charges through a binary Yes/No template. These charges involved allegations of gross violation of the Constitution, undermining the executive, undermining devolution, attacking judicial independence, financial misconduct, incitement, insubordination and gross misconduct. These were not simple factual questions. They required an understanding of constitutional standards, the meaning of ‘gross violation’ and ‘gross misconduct’, the evidence underlying each allegation, and the seriousness of removal from office. Yet the public was largely asked to express support or opposition through a simplified form. The BAT case public participation framework itself is unambiguous in that public participation must be accompanied by ‘clarity of the subject matter for the public to understand’ and that the public must be ‘first sensitized on the subject matter.’
The Court accepted that the public did not need Gachagua’s full response because public participation was not intended to become a mini-trial: the public was not meant to adjudicate the charges but merely to assess their gravity [336]. That is partly right but we scrutinise this further. The public was not being asked to adjudicate guilt or innocence. But this does not answer the real issue. How could citizens, especially laypersons, assess the seriousness of the allegations and whether they warrant removal without sufficient information about the charges, legal standards, the evidence, and at least the broad contours of the response? Meaningful participation requires more than an invitation to approve or reject a predetermined proposition. A binary template applied to uncontextualized charges may collect preferences, but it does not produce informed constitutional engagement. The risk is that public participation becomes plebiscitary – a simple vote of approval or disapproval – rather than deliberative: a mechanism for counting support rather than a process where citizens are informed, reflect, engage, and give meaningful input. The absence of analysis on the qualitative adequacy of the participation instrument itself is a significant gap in the judgment.
Notice, Timing and Accessibility Problem
The timing of the process compounds the problem. Notices were published between 2 and 5 October 2024, with constituency-level participation taking place on 5 October from 8 am to 5 pm. Even on the most generous reading, the effective notice period of at most 3 days was extremely short. The Court adopted a standard of ‘reasonable sufficiency in the circumstances’, emphasising that public participation does not demand perfection [335]. That is unobjectionable in principle. The difficulty lies in how the Court applied that standard to notice, timing and accessibility. The BAT public participation framework requires reasonable notice, and reasonableness cannot be assessed in the abstract. It depends on the complexity of the subject matter, the affected public, the available communication channels, and the seriousness of the decision.
Here, ordinary Kenyans were given, at most, three days’ notice to participate in a process concerning constitutional charges of exceptional complexity. Many work six-day weeks, farm, operate informal businesses, live far from constituency offices, or lack reliable access to newspapers, the internet, transport, and formal language (English and Kiswahili). Meaningful participation required time to learn about the process, access relevant materials, understand the charges, travel to participation venues or prepare submissions, and formulate a considered response. The Court also gave insufficient attention to allegations of last-minute venue changes in several counties, including Nairobi and Embu, and to the resulting confusion about where participation was to take place.
By treating the existence of multiple participation channels as largely sufficient, the Court gave too little weight to the practical realities that determine whether those channels were genuinely accessible to different communities. Reasonable facilitation should not be measured only by whether Parliament created formal avenues for participation, but by whether those avenues enabled meaningful engagement in the circumstances.
Language and Inclusion
The Court noted that notices were published in both English and Kiswahili [328]. While this is commendable, it does not exhaust the constitutional obligation of inclusiveness under Article 10(2)(b). Kenya is a linguistically diverse country. The BAT framework explicitly requires ‘inclusive and effective representation’ (BAT Case [96]). For many communities, especially elderly rural populations, vernacular radio remains a more effective channel of public communication than national newspapers or online notices. There is no evidence in the judgment that the National Assembly took any steps to broadcast information about the exercise through vernacular language radio stations. A serious public participation process in a matter of this magnitude should have involved more deliberate civic education. This could have included simplified explanations of the charges, summaries in accessible language, use of vernacular radio, public forums, and clearer mechanisms for oral submissions. The Constitution’s commitment to participation is also a commitment to inclusion. Participation that privileges the literate, urban, digitally connected and politically mobilised cannot be treated as fully meaningful simply because formal channels existed.
What Does ‘Facilitation’ Actually Mean? The Deeper Jurisprudential Risk
The judgment’s central public participation jurisprudential danger lies in how it conceptualises facilitation. The Court held that Parliament’s constitutional obligation ‘once discharged, exhausts the constitutional duty of the facilitating organ’. The duty, in the Court’s framing, is satisfied when Parliament creates a theoretical opportunity for participation. In the present case this is manifested through, opening the offices, printing the forms, issuing the notice, and establishing an email address. What the public then does with that opportunity is said to be a matter of individual civic agency, not institutional accountability. The duty is too easy to discharge, and the right to public participation is reduced to institutional choreography: notices, venues, forms, statistics, conclusion.
That is not what Kenya’s public participation jurisprudence has demanded. The cases cited by the Court require participation that is real, substantive and capable of influencing outcomes. They require attention to context, inclusion, clarity, information and reasonable opportunity. They do not require perfection. But neither do they permit tokenism dressed as compliance. The Court could have taken a more nuanced approach. It could have accepted that Parliament made some effort to facilitate participation while still finding that the process fell short of the heightened standard required for impeaching a nationally elected Deputy President. It could have clarified that grave constitutional decisions require more than formal access: they require informed, inclusive and deliberative engagement.
Conclusion
We circle back to paragraph 335 of the judgment: ‘The evidence before this Court shows that the door was opened widely, accessibly, and in good faith.’ This metaphor is problematic. A door can be wide open while remaining functionally inaccessible to those without transportation, without literacy, without awareness that it exists, or without the information needed to engage meaningfully once they cross the threshold. ‘The door was open’ is the genesis of the constitutional analysis, not its conclusion. What the Constitution demands, and what the Court should have demanded, is more than procedural symbolism.
Suggested citation: Victoria Miyandazi, Munene Njoroge ‘The Door Was Open, But Was Anyone Let In? Rethinking the Court’s Treatment of Public Participation in Kenya’s Deputy President Impeachment Case’ Int’l J. Const. L. Blog, Jun. 20, 2026, at http://www.iconnectblog.com/the-door-was-open-but-was-anyone-let-in-rethinking-the-courts-treatment-of-public-participation-in-kenyas-deputy-presidenti-impeachment-case/