The Legal Heresies of BBI Judgement: Donald Kipkorir
The Judgement by the Five Judges voiding BBI has elicited excitement in one part of the political divide and disappointment on those of us in support of BBI. I have read the 321 page judgement in extenso. The length may intimidate but the reasoning (ratio decidendi) and the conclusion thereat doesnt. The judgement makes the following basic & fundamental errors:
1. That there are certain Chapters or Articles which are “Basic Structure” & “Eternal Clauses” and can’t be amended. The Court didn’t give us one binding case law that makes those parts Basic or Eternal. Neither did they refer to one precedent from abroad that we defer to. This conclusion flies on the face of Article 255 of the Constitution that doesn’t exclude any part of the Constitution from amendment. The Doctrine of Severability applies to Articles 255, 256 and 257 to the rest of the Constitution.
2. Who is Wanjiku? The Court didn’t tell us who Wanjiku is but that President Uhuru Kenyatta whom they dismissively referred to as Mr. Uhuru Kenyatta can’t initiate Constitutional changes. Various Articles of the Constitution including but not limited to 12, 19 and 20 say all Kenyans are equal before the law and enjoy same rights. But the Judges have said President Uhuru Kenyatta isn’t entitled to enjoy the rights set out in Articles 255, 256 and 257.
3. Sovereign Will of the people: For popular initiative, the only test is raising One Million signatures. The court had added another requirement that President Uhuru Kenyatta can’t lead the initiative to collect the signatures. It is not what the Constitution says. Sovereign Will doesn’t exclude anyone. If President Uhuru Kenyatta can’t initiate an amendment, can he vote his MCA, MP? Can he pay taxes? This exclusion of the President is wholly errant and heretic.
4. Multiple Questions on Referendum Bill: Referenda world over, whether One issue or thousands of issues like in BREXIT Bill, the question was one: Yes or No. The Five Judges have said we must do multiple questions when we want to amend our Constitution but haven’t given us the legal basis for it. As BBI Bill proposes 69 changes, does it mean we have 69 multiple questions? Will 80% of Kenya Voters be able to read? How long will we take to vote if every voter has to read 69 questions? This conclusion defies logic and reasoning. The Judges aren’t infallible that we must take what they tell us is the meaning. Kenya isn’t a Jurisprudential Island.
5. Impeachment of the President: Through the back door, the Five Judges have reached finding that the President has violated the Constitution. No court can reach such a finding without calling the President to rebut. Reaching such a conclusion demanded that they advised the President of the implications of the case if not defended. Article 145 of the Constitution is how to impeach the President, a process the Court ignored.
6. IEBC: The Court held that IEBC isn’t properly constituted therefore bringing its actions into legal jeopardy. Yet last year, same Court said Parliament is unconstitutional and it be disbanded. So, if President Uhuru Kenyatta dissolves Parliament in compliance with the Court Order of last year, who will then constitute IEBC? Didn’t the Court remember its earlier decision?
When Courts are making decions, they make them taking into consideration the context and environment. The law enjoins Judges to take judicial notice including of our tribal politics, history & literacy level. BBI intended to right historical wrongs. To be dogmatic and give a long and winding dismissal of BBI in vacuo of our History and Politics isn’t enlightenment.
The Five Judge Judgement may excite one part of the political divide that have waged war against the President. The judgement gives them constitutional cover. This is a judgement that must and should be overturned. The judgement had no legal, philosophical or historical underpinning. Its substratum is Wikipedia, an online encyclopedia that is open source without academic imprimatur.
“This above all, to thine own self be true,
and it must follow as the night the day,
thou canst not be false to any man”
(President Nelson Havi who led the Petition is my friend and lawyer. I have the highest regards for him. In faulting the Judgement, I do not in any way fault Havi’s arguments. Lawyers by training and instructions make disputations; it is Judges who make the decision)