BBI judgment was a win for Judiciary more than it was for politicians

The Supreme Court of Kenya rendered its awaited verdict on the Building Bridges Initiative (BBI) last Thursday.

The decision is of similar magnitude as that of Chief Justice David Maraga’s nullification of President Uhuru Kenyatta’s 2017 re-election and received similar global publicity. The BBC, the New York Times, and Al Jazeera stressed the defeat of President Kenyatta’s attempt to change the Constitution. The local media pronounced the death of BBI.

The two cases are different when it comes to reasoning and judgment acceptability. The new Chief Justice, Martha Koome, wanted to shed impressions that she is beholden anywhere and redeem the court’s image as a fair arbiter. She was angry at influential lawyers who try to force their opinions on pending cases.

The BBI judgment did its best to prove wrong those people who portend to predict judicial outcomes. It was a mixed judgment, giving something to both sides, suggesting how to do things, and leaving politicians and lawyers on opposite sides to praise the Judiciary as a sign of democratic maturity. If there was anger, it was initially subdued.

In presenting individual decisions, the judges were also fighting the negative images of previously failing to give reasoned arguments for their positions. This was particularly pertinent because the High Court and the Court of Appeal BBI judges had set the intellectual bar very high when giving their verdicts.

This forced the Supreme Court judges to be equally erudite and to be seen to apply common sense. Each was intellectual, wanted to appear independent, and had the path cleared by the courts below. The man who set everything BBI into acrimonious motion was High Court Judge Joel Ngugi for he did not simply give judgment, he overreached himself by personalising President Kenyatta. 

The Supreme Court judges upheld and rejected some aspects of Justice Ngugi’s decisions. They threw out the ruling that the IEBC had not been quarried and that President Kenyatta could be sued while in office. The president, they said, was immune to prosecution.

For Deputy Chief Justice Philomena Mwilu, the person of the president has absolute immunity from prosecution while in office but does not have absolute impunity. Left hanging in the air is the point at which ‘impunity’ would erode immunity. Having protected the president, the court proceeded to agree with the other courts that the BBI lacked legitimacy because it was a presidential rather than a people product. Judge William Ouko gave a genealogy of the BBI beginning with the ‘Uhuru-Raila Handshake’.   

The attraction, however, was in tackling the concept of ‘basic structure’ clauses and in giving Mr Ngugi a judicial whipping. The basic structure argument made some parts of the Constitution virtually unamendable. It had come to Mr Ngugi’s court, then presiding over the initial BBI case, by way of Nazarene University’s Dean of Law School, Prof Duncan Ojwang.

Appearing as an amicus curiae, or friend of the court, Prof Ojwang advanced the view that entrenched constitutional clauses could not be amended at whims. Justice Ngugi, a former law professor himself, liked the idea and ran with it so hard that he ruffled judicial feathers.

Only Judge Mohammed Ibrahim thought there was merit in the basic structure argument. Basic structure argument seemingly drew the wrath of Judge Smokin Wanjala, another previous law don, who then enjoyed reprimanding Mr Ngugi. For Mr Wanjala, the basic structure debate belonged to universities and other places of intellectual engagements but not judicial corridors.

The Supreme Court BBI decision succeeded in elevating its public stature. It looked fair and trustworthy by using common sense while responding to intellectual challenges from the courts below. It protected the president from prosecution, insisted that the president is not an ordinary person, and also warned of the limits to presidential behaviour; immunity should not mean impunity.