Justice William Ouko gave the analogy of a family tree while tracing the hand of President Uhuru Kenyatta’s role in the Building Bridges Initiative (BBI).
While affirming the Court of Appeal verdict that the president cannot initiate a popular initiative, he said the genesis of the BBI task force can be traced back to him.
“Although the BBI national secretariat does not disclose its ancestry, its family tree, its genes cannot be concealed. The great-grandfather is the handshake, the grandfather is the task force, its father is the steering committee and the surname of all of them is Building Bridges Initiative (BBI),” the judge said.
Justice Ouko said Suna East MP Junet Mohammed and former Dagoretti MP Dennis Waweru were just the face of a juggernaut that had the blessings of the Head of State.
He said Uhuru could not marshal support for a popular initiative and then wait to append his signature as a seal of his approval. The president’s role, the judge noted, was not that of an ordinary citizen.
“The president cannot act as an ordinary citizen because he is not, and at the same time claim to be exercising Executive authority. He cannot, in the circumstances of Chapter 16, run with the hare and hunt with the hounds.”
Justice Ouko, however, disagreed with the Court of Appeal on the basic structure doctrine, noting that it is not applicable in Kenya.
The Court of Appeal found that the Constitution could only be altered through the primary constituent power that must include four sequential processes; namely, civic education, public participation, collation of constituent debate and a referendum.
But Justice Ouko found that Kenyans had in their mind a flexible Constitution for an unforeseeable future and rigid enough to block abuses experienced prior to 2010. The judge said the steps to have a referendum are rigorous enough to ensure protection against abuse. He added that it would be unfair for one generation to cement how future generations will live like.
“However great, however progressive a constitution may be, history, experiences and changes in the society would necessitate corresponding changes to the written text of the constitution with each generation having the right and freedom and the law under which they want to live.”
On the Independent and Electoral Boundaries Commission, Justice Ouko said it had a quorum to verify the BBI task force. “IEBC is a body corporate, whether, with the maximum seven or three minimum commissioners, it is able to execute its mandate and generate policies. With three commissioners, it was quorate and able to execute its functions.”
The judge said there was sufficient evidence that there was public participation, except on the second schedule of the BBI.
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On the president’s immunity from prosecution, Justice Ouko said the Head of State enjoys immunity from civil suits when in office.