BBI: Superior courts face tough choices after bombshell

In one of the most unprecedented rulings to come out of the corridors of justice in recent times, the High Court on Thursday delivered a hard-hitting judgment putting breaks on the clamour to amend the Constitution through the Building Bridges Initiative (BBI) process.

The judgment without a doubt served a major blow to BBI proponents given that the change in the constitution process had just entered the home stretch.

The determination by the five-judge bench of the high court quickly shifting focus away from the political arena, while setting the stage for a battle royal at the courts.

Indeed, the BBI Secretariat co-chaired by Junet Mohamed and Dennis Waweru has set the wheels in motion after indicating plans to return to court to challenge the ruling as soon as next week. And they are not alone.

A number of other interested parties are expected to lodge similar petitions over the high court verdict.

The landmark ruling by judges Jairus Ngaah, George Odunga, Teresia Matheka Joel Ngugi, and Chacha Mwita is a kick in the teeth to President Uhuru Kenyatta and his co-principal in the BBI process former PM Raila Odinga.

The two leaders unveiled the initiative following a major truce in the wake of the vehemently divisive 2017 presidential election, which saw violent clashes around the country.

Even as Kenyans continue to scrutinize the 315-page judgment that annulled the BBI process, Government’s chief legal advisor Attorney General Kihara Kariuki is in the spotlight for allegedly overlooking some gaps that may have advised the judgment.

Already, the office of the AG has filed a suit seeking an injunction against the execution of Thursday’s judgment. The suspension would provide him with ample time to file for an appeal.

However, several lawyers have jumped to the defense of the AG whom they argue shouldn’t shoulder all the blame.

In an interview with KBC, Constitutional Lawyer Stephen Mogaka opined that most of the issues presented in court for interpretation are new, especially considering that it is the first time the country is making an attempt to amend the 2010 constitution.

“Indeed, any litigation on the constitution of Kenya will obviously have the AG as a party. The questions brought to the high court for interpretation are novel. Let us not judge anybody harshly. It’s a learning process for us everybody is dealing with this baby for the first time” he said during the KBC News Hour show.

And he cautions that it is too early for BBI opponents to celebrate, noting that although the court has pronounced itself on what the petitioners presented to them and rendered their duty in accordance with the constitution, the battle is far from over.

“Contrary to what is being propagated this is not a government project but a popular initiative. Let us not have anybody open Champaign bottles, the journey of reggae had now moved to the court corridors” he advised.

His views appear to resonate with those of Governance expert Job Ndege. Ndege accused the five-judge bench of overreaching itself on some matters adding that the same law can be interpreted differently, the reason why the Appeal Chamber and the Supreme Court exist to provide redress.

Asked on whether the ruling was purely political as claimed by the promoters of the BBI, Ndege remains guarded, but faults some of the orders given by the court which he says are contestable for lack of clarity.

“The ruling that the President cannot initiate the initiative is contestable. He is a Kenyan and cannot be stopped from doing things that Kenyans do. I feel that the judges overreached themselves. This rule is not clearly stated in law, a judge must read the law as written and if there is a lacuna, they should be advising the people concerned but not give their opinion” he says.

Ndege argues that the situation after the 2017 general election prompted the President to initiate the process in an attempt to unify the country and bring an end to the animosity.

“The President in exercising his authority under article 131 (2) decided to have a handshake with Raila and eventually birther the BBI in the interest of the nation to break the cycle of election violence”. He said

Over and above this, the two pundits wondered why the judges went ahead to overturn some of the rulings made initially by the same court on related matters.

They cited petitions filed in the High Court challenging the constitutionality of the Building Bridges Initiative taskforce and the issue of a quorum at the country’s electoral agency, IEBC.

Indeed, Justice John Mativo last year threw out a petition seeking to quash the task force and its operations yet on Thursday the five-judge bench termed it an illegal outfit.

The experts argue that the finding, in fact, puts the fate of several by-elections conducted by the commission in the balance should they be challenged in court;

“There are serious issues arising from this judgment. What we need is a conclusion to this business. I will not be surprised if the Court of Appeal suspends the judgment”. Mogaka remarked

“The bench also turned a finding that the BBI was initiated by the president I don’t know where they got the evidence. We cannot deprive the President of his right as a citizen. The IEBC issue is a matter that was settled by the same court,” Ndege added.

According to Mogaka, the referendum process should not have been stopped. “We should have first dealt with the entire process which was at the last tail end. Some of the orders issued are premature. The ultimate decision of which way the BBI should go should be placed in the hands of the people then seek judicial intervention later,”.


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