What makes my head spin in BBI judgement


Jubilee Party Youth League member Connie Wangu flanked by other youth addresses the press at a Nairobi hotel on May 17,2021 where they expressed their divergent opinion on the five bench judge that legitimized BBI.[Denish Ochieng, Standard]

One of the world’s most famous planes, the supersonic Concorde no longer flies. In a July 2000 accident near Paris, a small piece of metal on the runway punctured its tire which in turn ruptured a fuel tank.

The fire sent the plane crashing and killed 109 passengers.

The plane was retired in 2003 but not before giving me a rare chance to witness the Nigerian affluence at Heathrow Airport, in London. Clad in their traditional robes, Nigerians queued to board the Concorde. How many Kenyans flew aboard Concorde?

The Building Bridges Initiative (BBI) was like Concorde. Its speed meant any small mishap would be disastrous. Failure to follow the law was the mishap as confirmed by the five-judge bench.

Many will not read the 320 pages judgement but that will not shield them from the consequences.

Remember that in legal decisions, we use precedence which I see from an economist perspective as repugnant to innovation. Remember, “The process” was the lynchpin of annulled presidential polls in 2017.

So much was invested in the BBI - both financially and emotionally. It’s as if the legal fraternity waited for the optimal time to inflict maximum damage to BBI. Reacting to this judgement soberly is hard but I will try. Why does it matter so much?

One, it confirms that the 2010 Constitution stripped the president of lots of power. Some were taken up by the Judiciary, governors, Parliament and constitutional commissions.

Civil society seems to have got the Judiciary either by stealth or design. Some power is still “floating around” waiting for takers. That is why we never run out of new laws to anchor the floating power. Separating the presidency from “himself” is another ingenious way to reduce his power.

My head is spinning over this judgement. When summoned to The Hague, our president signed off his powers and left as a private citizen.

Would he do the same if sued as a private citizen? To learned friends; can we argue the president initiated BBI as a citizen of Kenya, as a voter? Stripping the president of so much power worries me, not that I am a centralist.

Just because past presidents misused their power does not mean their successors will misuse it.Suppose they put that power into good use? Must we remove the sting from every scorpion if a scorpion stings someone?

My worries emanate from the fact that a State so “hollowed out “might not withstand a major disaster or crisis. Why is Nigeria unable to crush Boko Haram? Dispersed power leads to powerlessness. We can talk about checks and balances in another forum.

Two, the Change the Constitution Movement espoused by BBI has an uncanny resemblance to such a movement before the end of Jomo Kenyatta’s era in 1978. Both movements seem to have one strand; stop someone from ascending to the presidency.

The first movement surprised us. Will this one surprise us too?

Three, the Executive wing of the government does not seem to have a very cordial relationship with intellectuals who populate the Judiciary and we might add higher education.

Is the Executive paying the price for that? The Executive wing of the government is more attuned to reality, but it must get used to the idealism of the legal fraternity and intellectuals.

The Executive also forgot something to its detriment. That like the political class, the Judiciary would love to perpetuate itself. Did the two former chief justices, leave their “judicial offsprings”?

They will not be going around boasting “we are Mutungalets or Maragalets.” Remember how President Donald Trump populated the Supreme Court with his appointees?

Unable to confront the Executive head-on, is the Judiciary using the horn strategy perfected by Shaka the Zulu? Attack from the franks and when least expected. Remember nullification of polls in 2017? Remember Judiciary lacks the direct power from voters like politicians.

The budgetary allocation could be another possible cause of the toxic relationship between the two arms of government. The failure to appoint 41 judges may also play a part in this relationship. But the BBI judgement was so factual that such reasons can be left out for now. What next after BBI stop?

Any future lessons? The legal fraternity “grabbed” lots of power through the 2010 Constitution. And they are not averse to using it. The rest of us were spectators.

Noted how teachers got into the Constitution and not medical doctors or dons! I use the term legal fraternity because of the interchangeability of lawyers and judges. One can be a lawyer and then a judge tomorrow or vice versa. That’s rare in other professions.

The BBI proponents will definitely try to revive the project. But from experience, political projects are “very perishable.” Remember few politicians want to be associated with failure.

Will the MCAs, MPs (Members of the National Assembly and Senators) shift gear to 2022 polls and shelf BBI till after elections? They want another term; the president wants a legacy. Could the BBI opponents get the sail out of BBI? Did they have a replacement project to leverage now that BBI has been stopped? Were they also caught by the pleasant surprise?

Politicians can take consolation that after the 2005 referendum loss, we still got a new Constitution. Never mind it took us another five years. Kibaki and his lieutenants had time. The current proponents do not have it.

Given the time to 2022 polls, it seems there is no time to revive BBI and regain the momentum. This leaves us with the current Constitution to hold 2022 polls and the high stakes thereof. The 2022 polls could be the most expensive in history, not forgetting the backdrop of Covid-19.

BBI would have made 2022 polls cheaper by simply allocating the new big positions to the communities that matter in vote numbers. Will Handshakers react like wounded lions and surprise us? After all, who said the Handshake is the last political surprise. How about using powers out of judicial reach, the “floating power”? Example on floating power; police officers “seating” themselves into our cars and matatus after flagging you down.

What is incontestable is that unless the Court of Appeal or Supreme Court frees BBI, we are back to the old Constitution and the election drama.

The political classes which have now closed ranks owe us a peaceful general election with or without an amended Constitution. Finally, going by the national reaction after the annulment of 2017 polls and BBI, there is overwhelming evidence that Kenya is showing full-blown symptoms of a mature democracy.


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