The BBI debacle in the High Court has left President Uhuru Kenyatta and ODM leader Raila Odinga on shaky legal ground and in an awkward political place.
The two leaders have often touted BBI as their gift to future generations. With just about 14 months left to next year’s General Election, it is doubtful there will be ample time to address the 21 flaws that the five-judge bench unanimously cited, while throwing the Constitution of Kenya (Amendment) Bill, 2020 to the rubbish heap.
The question of legacy has especially occupied President Kenyatta since his reelection in 2017. He will agonise for long hours on what next, following the shattering judgement against BBI by Justices Joel Ngugi, George Odunga, Ngaah Jairus, Chacha Mwita and Mumbua Matheka.
Some of the flaws the High Court judges condemned the BBI Bill on seemed so obvious that they invite questions on the quality of legal counsel the president enjoys. Most glaring was the sponsorship of the Bill. The court took issue with the fact that Uhuru was the principal promoter of the Bill.
He signed off BBI documents for the official Kenya Government Gazette in his official capacity. Yet the Bill was also passed off as a popular initiative to amend the Constitution under Article 257 of the Constitution of Kenya 2010. The court ruled the president has no authority to initiate a constitutional amendment process. The process was therefore fatally flawed from the very start.
That the official legal team in the Attorney General’s office did not bring this anomaly to the president’s attention and advise him how to navigate his way around is a major indictment against the AG’s office. This has left the President with egg on his face, but AG Kihara Kariuki and his team at Sheria House cannot get off scot-free either. In a functional democracy where public accountability counts, heads would by now be rolling in Sheria House, beginning with the AG.
Right to appeal
The AG has indicated that he intends to appeal the ruling. The quality of advice that the president is likely to receive on grounds for appeal will, however, remain worrying. The AG and his team failed to recognise that BBI was on a slippery path, even by the very manner of the appointment of the Steering Committee and its gazettement by the president.
The conflict between the official presidential hand and that of Uhuru Kenyatta as a citizen was glaring. This alone fatally flawed the process. Even without considering the rest of the grounds, this alone would suffice to caution against the contemplated appeal.
Yet there were many other issues, which the AG would be expected to advise the president on. The composition and status of the IEBC was irregular and unconstitutional. The verification of signatures by the commission was not properly regulated. The regulations lacked public participation and parliamentary approval. The delineation of constituencies usurped the powers of the IEBC.
The Steering Committee as an instrument of the Executive lacked the mandate to do what it purported to be doing. Public participation was absent. A national constituency assembly such as that of the Bomas process in the past was absent. A voter registration exercise was not undertaken. There was no voter sensitisation. These and many other flaws raise questions on what the office of the Attorney General does in its duty to the president.
In all this, the one critical thing that the BBI fiasco foregrounds is that whether he knows it or not, Uhuru is writing his legacy through his various flawed engagements with the law. When the history of his rule is eventually written, it will be about his politics and how they engaged with the rule of law. These will be cited in many jurisdictions in the world, as well as in law schools, political science and history lecture theatres globally.
Already, the president has a catalogue of uncomfortable legal goofs behind him. They speak of a national leader who has either benefited from unfortunate wisdom or conversely, one who holds the law in contempt.
It is mortifying that the judges stated: “A declaration is hereby made that Mr Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.”
The AG’s office fatally failed the president by allowing him to come to this pass. Besides, the court found it intriguing that the AG filed court documents for his office as Attorney General, but “proceeded to argue Mr Uhuru Muigai Kenyatta’s case.” This is at the heart of the problem, the inability to distinguish between Uhuru Muigai Kenyatta, acting as a private citizen and yet signing off BBI documents in his official capacity as the president. President Kenyatta’s legacy in this regard is already legion, even as he ponders his next step. Under AG Kariuki, the President has refused to appoint 41 (now 40) judges to the High Court and Court of Appeal, despite two court orders. He has basically abdicated duty and held the law in contempt.
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On a separate occasion, the president has shrugged off the courts’ advice that the Nairobi Metropolitan Services is in place illegally. So, too, has he shrugged off the determination by the courts that the second term Cabinet Secretaries required fresh vetting by Parliament, while Cabinet Administrative Secretaries are in office illegally.
There is also the contestation of the advice by the retired Chief Justice, David Maraga, to dissolve Parliament for its failure to enact the Gender Law as contemplated by the Constitution. This matter is alive in court, the AG having appealed against the CJ’s advice. It will be interesting to see how this is determined.
Earlier, relations between the AG’s office and State House got frosty, when AG Emeritus, Githu Muigai, advised the president against overlooking a court order that stopped a police recruitment and training process in 2014, following allegations of corruption in the exercise.
After the September 21 attack on the Westgate Mall, the president ordered that the exercise should go on, in spite of the order, saying he would take full responsibility. Other state officers have also defied court orders with impunity, possibly taking the cue from the boss. The case of Miguna Miguna, who has been denied entry into Kenya, stands out.
With a litany of legal fiascos from the past, the president will probably want to weigh carefully the counsel he receives on the way forward with the BBI. He will especially want to recall that two leading lawyers and ODM legislators, Siaya Senator James Orengo and Rarieda MP Otiende Amollo, have lately expressed disquiet about issues they consider unconstitutional in the BBI. This is despite their support for the BBI generally.
A misstep at the next stage will leave the president with more scum and grease on the face than where he is at present. He may want to consider the wisdom of being advised by a different set of legal minds.
Whatever direction the BBI process goes, its sponsors have been politically wounded and the country divided, contrary to the BBI objective of unifying Kenya. In the event that there is a referendum at a future time, the sponsors will be hard put to convince the country that they mean well and that the Bill is good for Kenya.
The Thursday setback has also handed political high ground to the detractors of BBI, even as it places Parliament in an awkward place. Throughout the process, they have taken politicised partisan stands that have divided the Kieleweke and Tangatanga factions.
The Tangatanga faction has assembled around DP William Ruto to fight BBI. Following the court decision, Ruto quickly posted a tweet, celebrating the decision as an act of divine intervention.
Parliament, meanwhile, has its hands tied, having voted overwhelmingly for a process that raises the possibility of a presidential impeachment. Going forward, however, it will be of interest to see whether Tangatanga can make gains from the political capital that the court decision has placed in their lap.
Equally in a catch 22 are one Kenya Alliance leaders, especially those who belatedly joined the BBI bandwagon, having been against it all along. Musalia Mudavadi (ANC), Moses Wetang’ula (Ford Kenya) and Kalonzo Musyoka (Wiper), have just missed a great political moment.