Alphonce Barrack Jnr

°Advocate of the High Court of Kenya° Research Fellow - UKZN School of Law° Teaching & Research Assistant - Strathmore Law School°

[Alphonce Barrack Jnr @alphonce_barry]

@UTDIMole Mesut Ozil

[Eric Theuri SC @etadv]

A while back a judicial officer was arrested with money said to be proceeds of corruption by EACC. No action was taken. In this instance because of the LSK boycott, action has been swift. Do we need any further evidence of how bad things had become??

[Orin Kerr @OrinKerr]

If you're starting law school next month, you might be interested in my short essay, "How to Read a Legal Opinion: A Guide for New Law Students." You can download it for free here: https://t.co/mnDsKPjQT3

[Alphonce Barrack Jnr @alphonce_barry]

@_onlyscott Toni Kroos

[Eric Theuri SC @etadv]

The only outcome when cops and goons work alongside each other to break the law, is more anarchy. Police protection of goons gives them the feeling of immunity. They become bolder more organised and this creates rival gangs. When state approved goonism becomes commercially attractive then the whole country becomes fair game. This taken together with police abductions set a slippery path to violence and anarchy.

[Alphonce Barrack Jnr @alphonce_barry]

@uttdkola Angel Di Maria

[Alphonce Barrack Jnr @alphonce_barry]

@KingTunde_SZN 16 holes

[Alphonce Barrack Jnr @alphonce_barry]

@ThatG4m Michael Essien

[Alphonce Barrack Jnr @alphonce_barry]

@Ronieutd Morgan Schneiderlin

[Alphonce Barrack Jnr @alphonce_barry]

@NEDUszn8 Diego Dalot

[Alphonce Barrack Jnr @alphonce_barry]

Romelu Lukaku ⚽️

[Alphonce Barrack Jnr @alphonce_barry]

@NelsonHavi @FredAparoh Should be every 5 years

[Alphonce Barrack Jnr @alphonce_barry]

@GunnerPuls Fàbregas

[Kenson Mutethia @KensonMutethia]

High Court has finally issued the most express and accurate statement of Political Questions Doctrine in Kenya. It's not a doctrine of abdication but one of restraint, requiring courts to leave political choices to politicians & only deal with constitutional compliance questions.

[Alphonce Barrack Jnr @alphonce_barry]

@PLforIndia Robin van Persie

[Faith Odhiambo @FaithOdhiambo8]

Yesterday's High Court judgment on the impeachment of H.E. Rigathi Gachagua raises serious and legitimate questions that our constitutional jurisprudence must grapple with honestly. The three-judge bench found that the Senate violated the former Deputy President's right to a fair hearing under Article 50 of the Constitution specifically by declining to grant an adjournment when he was unable to attend the proceedings. The court acknowledged that violation, issued a declaratory order and awarded Ksh.50 million in constitutional damages. Yet the bench ultimately upheld the impeachment itself. I respect the court and the constitutional role it plays. But I believe this outcome calls for serious reflection on the coherence of our remedial framework.

The tension in the judgment lies in this, if the Senate's refusal to adjourn was a constitutional infirmity serious enough to warrant a finding of violation and a Ksh.50 million award, then the question that naturally follows is whether that infirmity was capable of tainting the entire removal process. The right to a fair hearing is not procedural decoration. It is a substantive constitutional guarantee, particularly in proceedings that result in the removal of a person from high public office. Courts must therefore grapple carefully with what it means to vindicate a right while simultaneously affirming the outcome that flowed from its violation. It is a difficult balance and I appreciate that the bench was navigating complicated constitutional terrain.

It is instructive to recall the reasoning of the Supreme Court in the landmark 2017 presidential election petition delivered by the then Chief Justice David Maraga. The court, in a 4-2 majority, nullified the presidential election not on the basis that the outcome was necessarily wrong but on the basis that the process through which it was arrived at did not conform to the Constitution and the law. The court found that irregularities and illegalities in the transmission of results had compromised the integrity of the election and that the constitutional standard required more than a plausible result, it required a process that was itself constitutionally compliant. That principle that a flawed process cannot produce a constitutionally valid outcome remains a pillar of our public law.

When we place that 2017 reasoning alongside yesterday's judgment, a legitimate concern emerges. Both cases involved constitutional violations in the course of a high-stakes removal or electoral process. In 2017, the violation of constitutional standards was sufficient to nullify the result entirely. Yesterday, a violation of the right to a fair hearing was found, remedied in damages but the result was preserved. These are not necessarily irreconcilable positions, courts do have discretion in fashioning remedies but the distinction must be clearly reasoned and transparently justified because the precedent being set will govern how future impeachments are conducted and how future courts respond to violations within those processes.

My concern is about the precedent this decision may establish. If a constitutional violation during impeachment proceedings can be remedied by damages without disturbing the outcome, future Parliaments and Senates may not feel the full weight of their constitutional obligations when handling removal proceedings. The court itself noted the urgent need for Parliament to enact a dedicated statutory framework under Article 150 governing the removal of a Deputy President which is a legislative gap that should never have existed this long. That recommendation must not be ignored. A constitutional democracy is built on the integrity of its processes not merely its outcomes. We must ensure that the right to a fair hearing in Kenya remains substantive and not merely symbolic.

[David Manne @david_manne]

High Court of Australia just ruled that the Govt is bound by the law as it stands & cannot defend a claim for false imprisonment for indefinite detention on the basis it thought the law was different. Potentially very significant implications https://t.co/gBoGvCz9Ne #RefugeeLegal

[Alphonce Barrack Jnr @alphonce_barry]

The Gachagua ouster judgment rendered by the High Court this evening sounds like Damnum sine injuria.

[Alphonce Barrack Jnr @alphonce_barry]

@UTD_Anna_ Jesse Lingard

[Alphonce Barrack Jnr @alphonce_barry]

@Furious_red_ Captain Cafu