By Gitau wa Kung’u.
• The Court verdict prompt mixed reactions from political leaders who took to social media to express both their approval and disappointments.
• One of the first to react was ODM Party leader Raila Odinga who conceded to the decision of the court even before it was formally made.
"The constitution is constitutionally constituted to constitute a constituent of a constitutionalism," Justice Patrick Kiage.
These2 among other heavily didactic legal and literary wordsmiths eloquence literally and finally stopped the “Building Bridges Initiave (BBI) reggae” in the Kenyan appellate court.
The Court of Appeal’s seven bench jury delivered the much anticipated ruling: BBI IS UNCONSTITUTIONAL, NULL AND VOID! The seven judges are Justice Musinga, Rosylene Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale, Francis Tuiyott.
The High Court nullification of the BBI initiative’s appellant legal team led by senior counsels Fred Ngatia and James Orengo had moved to the appellate court in a bid to revert the High court’s verdict to halt the BBI process.
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| The seven Court of Appeal Judges |
The jury harshly and blatantly condemned the president, “Mr. Uhuru Muigai Kenyatta,” a virtual constitutional criminal who willfully violated his oath to defend the constitution and thus not fit to hold office and can be sued and removed from office.
Kenyans irresistibly stayed eye and ear open following the ruling’s progress from TV and radio channels and their fingers barely detached from their keyboards, expressing their multitudinous opinions on social media platforms. Finally, the evening was awash with celebration, mockery, lamentations and regrets.
Justice Kiage ruled out boldly without fear or favour: “They were effectively dismembering the constitution, blasting so huge a hole in it as to pulverize, and essentially create a new Constitutional order.” He added, “Provided the amendments proposed do not amount to dismemberment or abrogation, they are permissible. But even then, such amendment must be done in accordance with article 257.”
"Any adverse orders made against the president in his personal capacity would be open to setting aside ex debito justitiae."
“The steering committee was a government project. They were prominent personalities joined together by presidential fiat; they had no mind or idea of their own to initiate but were instead tasked to identify constitutional, among other changes.” Justice Kiage added.
Justice Musinga’s thunderclap: “Having the provisions that have been referred to as unamendable, immutable, unchangeable, unalterable, irrevocable eternity clauses ‘serve as a mechanism for limiting amendment power but they do not and cannot limit the primary constituent power of the people, however, I do not think that the alteration of the basic structure must be undertaken through the repeal of the constitution and the promulgation of another.”
Justice Tuiyot ruled: “Unless otherwise expressed by a constitution, an amendment entails a minor revision, alteration or addition, but which nevertheless does not destroy the constitution being amended. It does not extend to abrogation, complete re-peal or replacement…”
Justice Okwengu said: “An amendment is an alteration of the Constitution that is carried out within the confines of the existing Constitution. It alters the constitution in a way that does not radically change the nature of the constitution; which means, it must remain consistent with the object and purpose of the constitution. This is to be contrasted with change or remaking of the constitution which involves a complete review and, or, substitution of the former constitution which can only be done through the exercise of primary constituent power.”
Justice Gatembu noted: “The proposals by Junet Mohamed and Dennis Waweru (BBI Secretariat Co-Chairs) would have been best channelled through a parliamentary process; this was not a Wanjiku process. The process leading up to the formulation of the Constitution of Kenya Amendment Bill, in my view, was largely driven by the Executive.”
Justice Sichale faulted her colleagues judgment. She said: “It was wrong for the High Court to proceed with the hearing and thereafter make adverse findings against H.E President Uhuru Kenyatta without ascertaining whether he had been served either with the petition and or the subsequent hearing notices.”
She observed that verification of signatures does not require the IEBC to have a quorum. She added that a constitution must be flexible to allow for a country’s growth and development since “what is good for one generation may not necessarily be good for the next; present and future generations should not be ruled by the dead hand of their ancestors.” She is the only judge who ruled in favour of the appellants.
The judges were not oiling the wheel of courteous address as they ruled out that there was mad rush to pass the bill in most county governments to demonstrate party loyalty. That party loyalty, deconstructed all assemblies and the judiciary is not ready to lose its independence and mandate to uphold the sovereignty of the constitution to let the politicians rule Kenya like a forest.
The “fake BBI reggae” as deputy president Dr. Ruto has repeatedly said since the launching of the BBI initiative by the “handshake partners” indeed stopped. This verdict is a major haunting premonition for Hon. Raila Odinga’s 2022 presidential aspiration that is a seed of positive intuition to Dr. Ruto’s similar dream.
“How Atwoli understands this message is none of my business!” P.K.
