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Don't let BBI judgement be reason to plant seeds of despondency, division

By Editorial | August 20th 2021

Court of Appeal President Daniel Musinga.  June 30, 2021. [Denish Ochieng, Standard]

This morning, seven Court of Appeal judges will deliver a much-awaited judgment on the Building Bridges Initiative (BBI).

Proponents of the BBI among them President Uhuru Kenyatta and former Prime Minister Raila Odinga went to the Appellate Court against a ruling that declared the Constitution of Kenya Amendment Bill, 2020 null and void for among other things “interfering with the basic structure” of the 2010 Constitution as petitioned by civic activists under the Linda Katiba and the Law Society of Kenya.

The judges also faulted the process that led to the record-time passage of the Bill at the County Assemblies and at both houses of Parliament.

Some of the radical proposals (contained in what was touted as an antidote to the perennial electoral violence) were an expanded Executive – to include a Prime Minister and two deputies, an additional 70 constituencies and a Judiciary Ombudsman.

Whichever way the ruling swings, it is important to appreciate what got us here.

First, the Bill is an offshoot of the famous March 2018 Handshake between President Kenyatta and Raila that is credited with easing the tension that had built up after the contested August 2017 election of President Kenyatta.

Dissatisfied, the Nasa coalition led by Raila petitioned the Supreme Court to annul Uhuru’s win.

Proper outcome

The petition was upheld, with the judges insisting that the outcome was as important as the process, placing the blame squarely on IEBC insisting that proper process leads to a proper outcome.

Raila stayed away from a repeat election in October 2017 which President Kenyatta won.

That didn’t help matters much until the Handshake happened.

The architects of the Bill simply sought to build on the gains of the Handshake.

But then the High Court found fault in how they went about it

Secondly, the High Court judgment was an endorsement of our maturing democracy despite fears that the Judiciary had been captured by an overbearing Executive.

In pronouncing themselves against the expectations of a powerful class, the five High Court judges projected the Judiciary once again as a lynchpin for our democracy.

In the same vein, the political class deserves plaudits for, despite the obvious setback and grievance from the ruling, they allowed the due process to follow its course rather than incite their followers even though a few of them badmouthed the judges.

Nothing less is expected of all of these groups in what will be another historic moment for the Judiciary and for our democracy.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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