Appeals court has redeemed itself with the BBI judgment

Bated breath, tension and anxiety marked the delivery of the BBI judgment by the Court of Appeal. This was not without justification considering that the court has been seen to be the slowest in adopting the transformative approach in interpreting and applying the 2010 Constitution. 

Its procedures, rules, mannerism and decisions weathered and even resisted then Chief Justice Willy Mutunga-led liberalisation of the Judiciary. This court has been notorious in upsetting the gains in the transformative agenda, leading to some referring to it as the graveyard of jurisprudence.

Others figuratively described it with the hourglass illustration whereby the High Court and Supreme Court occupied the two broad ends full of philosophical richness while the Court of Appeal clung to the thin middle. An often cited decision in this regard is the Mumo Matemu Vs Trusted Society of Human Rights Alliance where the Court of Appeal effectively trashed and thrashed the aspirations of Chapter Six of the Constitution on Leadership and Integrity.

With the delivery of the BBI judgment however, the court appears to have redeemed itself of its conservative past. It upheld the core elements of the High Court BBI judgment and only upset some cosmetic and inconsequential findings of the High Court.

Such inconsequential findings include setting aside the finding that President Uhuru Kenyatta had contravened Chapter Six of the Constitution by initiating and promoting the impugned constitutional change; setting aside the finding that the specific proposed amendments to the Constitution ought to be submitted as separate and distinct referendum questions to the people and setting aside the finding that the BBI Steering Committee was an unconstitutional and unlawful entity.

The Court of Appeal left the core findings of the High Court intact and if anything used colourful language to embolden them as follows:-

1) The Basic Structure doctrine is applicable in Kenya and to the Constitution.

2) There is a difference between a dismemberment and an amendment and what was proposed through the BBI steering team was a dismemberment since it sought to alter the Constitution’s fundamental values, norms and institutions including Separation of Powers and the Independence of the Judiciary.

3) The basic structure of the Constitution could only be altered through the Primary Constituent Power while following the 4 sequential processes of civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.

4) The President has no authority to initiate changes to the Constitution.

5) The BBI process as was not a popular initiative under Article 256 of the Constitution but a presidential and politician-led process.

6) There was no meaningful public participation (quantitatively and qualitatively) in the BBI process.

7) The IEBC lacked the requisite quorum to carry out activities related to the Constitution Amendment Bill (BBI).

8) There is no mandatory requirement for the IEBC to carry out a mandatory national voter registration drive prior to a constitutional amendment but the IEBC has a constitutional obligation to carry out continuous voter registration.

9) Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.

10) There was neither legislation governing the collection, presentation, and verification of signatures, nor an adequate legal/regulatory framework to govern the conduct of referenda.

11) County assemblies and Parliament cannot change the contents of a Constitution of Kenya Amendment Bill initiated through a popular initiative.

12) The predetermination and allocation of proposed additional 70 constituencies was unconstitutional.

Looking at it analytically, it’s not just the Court of Appeal that has experienced a new birth. What the Kikuyu call an ituika (change of guard) has just occurred in the legal profession. The BBI demolition lawyers were relatively young and dynamic. 

Led by LSK President Nelson Havi, the young advocates such as Esther An’gawa, Muthomi Thiankolu, Ochiel Dudley, Evans Oganda, Morara Omoke, Michael Nyaga Karanja, Christian Ondale, Cherono Biwott and Arnold Oginga have announced their arrival and intention to remain at the top.

The judges too shone. Some have come out with their profiles elevated in the public sphere. The fact that each judge wrote their own judgment has revealed their individual philosophies. One could easily tell the stark difference in the judicial team. Most were modest but transformative nonetheless and others like Justice Patrick Kiage made an explosion in the demolition of the appellant’s and executive actions.

His judgment was a no holds barred explosion of carefully laid words in prose. Poetic but informative, hard-hitting but impressive, educative but entertaining. There can be no doubt that Kiage ended up as the MVP of the bench side. He has demonstrated that writing judgments is an art that breathes life into a hitherto dull task.

Though his style is apparent in numerous decisions, the BBI judgment has brought it to the fore of the public. We can be sure that this decision will open up doors for him globally.

The nagging question is what next for the BBI proponents. There are mixed signals from the BBI secretariat with ODM leader Raila Odinga saying they will move on while lawyer Paul Mwangi has hinted they may move to the Supreme Court.

Politically, we are only a year to the General Election, and its time to shift focus to the ground. In any event, the limited time remaining means there is no time to prosecute an appeal, mass register voters, civic education, a referendum and an election. That would be tantamount to chewing more than Kenya can possibly swallow.