When courts appear contradictory, Kenyans will pay the ultimate price

The most dangerous thing a court can lose is not a case. It is public confidence. Courts derive authority neither from guns nor from votes. Their power comes from trust. Citizens obey court orders because they believe judges are impartial arbiters who apply the law consistently, fairly and without fear or favour. Once confidence erodes, democracy enters dangerous territory.

That is why the High Court judgment on the impeachment of former Deputy President Rigathi Gachagua has generated debate. The court found that his right to a fair hearing had been violated and awarded him compensation. It declined to overturn the impeachment.

Whether one agrees with Gachagua politically is beside the point. The issue is larger than one politician. It is whether a constitutional process found to be defective can still produce a valid constitutional outcome. For citizens, the judgment appears contradictory. The public asks a question. If the process was unfair, how can the outcome remain fair. Lawyers and judges may offer explanations. They may distinguish procedural defects from substantive outcomes. They may argue that stability required preserving the result. But public confidence is not built on technical distinctions alone. It is built on whether justice appears logical and consistent.

When citizens struggle to understand judicial outcomes, doubts emerge. Those doubts become dangerous when courts resolve political disputes. Kenya has travelled this road before. One lesson of the 2007 post election crisis is that disputes become explosive when citizens lose faith in institutions meant to resolve them peacefully. At the time, the opposition expressed little confidence in the Judiciary’s ability to adjudicate electoral grievances impartially. Whether those concerns were justified remains open to debate. What matters is that Kenyans believed the courts could not provide an effective remedy. That perception pushed political actors toward confrontation rather than law. The result was one of Kenya’s darkest chapters. The lesson should never be forgotten. Democracy survives because losers believe institutions will protect them when they lose. The day citizens conclude that courts cannot correct constitutional violations is the day they begin seeking remedies outside the constitutional order. No country should reach that point.

This is why consistency in constitutional jurisprudence matters. Article 25 places the right to a fair trial among rights that cannot be limited, while Article 50 protects fair hearing guarantees. The framers elevated procedural fairness because they understood that process is the foundation on which rights depend.

If courts appear willing to compensate violations while preserving their consequences, citizens may ask whether constitutional rights are symbolic rather than enforceable. That perception may be unfair to the Judiciary and may not reflect the court’s reasoning. But perception matters. Public confidence is measured by what citizens believe.

The concern extends beyond Gachagua. Senator Okiya Omtatah has reportedly petitioned the Judicial Service Commission over allegations that appellate judges issued consequential orders in the Kenya US health cooperation litigation while delaying reasons for the ruling. The concern is not only about the result. It is about whether litigants can understand decisions and exercise their right of appeal.

Reasoned judgments are not a luxury. They are a constitutional necessity. When courts explain decisions clearly, citizens may disagree but still respect the process. When explanations appear absent, incomplete or inconsistent, suspicion grows. Judicial legitimacy depends not only on reaching decisions but on persuading the public that those decisions are grounded in law and reason. The Judiciary must guard its credibility. This is especially true as Kenya moves closer to the 2027 General Election. The country is entering heightened competition. Electoral disputes, constitutional challenges, impeachment questions and governance conflicts are likely to increase. Courts become the last line of defence against instability.

A democracy can survive unpopular judgments. It can survive controversial judgments. What it cannot easily survive is a belief that constitutional violations no longer have consequences. History teaches that when citizens lose faith in courts, politics moves from courtrooms to the streets. Kenya paid that price once. It should never pay it again.