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BBI promoters’ big headache in court, homework with Wanjiku

By Kamotho Waiganjo | June 25th 2021
Former Attorney General Githu Muigai (standing) for IEBC speaks as a section of other lawyers follow proceedings at the Supreme Court, June 2. [Collins Kweyu, Standard]

The Court of Appeal President Daniel Musinga was finally empaneled to the seven-judge Bench that will hear the BBI appeal. There are many who believe the Court of Appeal, named “the graveyard of progressive jurisprudence” by its critics, will resuscitate the BBI. Those believing this are living in a fool’s paradise.

Firstly, unlike the High Court bench, which anyone who had bothered to follow the judicial philosophy of the presiding judges, would have predicted reggae would be stopped, this empanelled bench is largely unpredictable.

Secondly, anyone who has studied basic jurisprudence will tell you that while the courts in theory focus only on the law in their decisions, they are extremely sensitive to political and societal realities. This is especially true of quasi-political cases like BBI.

Even with the best legal arguments, judges throw away cases which they feel are socially unpopular. They still find a way to rationalise their decisions but in reality, the decisions are informed by the political and social environment.

If the judges feel the public is generally strongly opposed to BBI, there is real possibility that irrespective of the legal arguments, the initiative will be collapsed at the Court of Appeal.

This will bring it to a natural death since the Supreme Court would also not wish to be seen as “pro-system” and “anti-people” if the social environment appears toxic against the Bill.

So yes, the BBI lawyers must argue what I believe is a winnable case convincingly to the seven wise men and women.

But outside of the courtroom, its promoters must recognise that the political and social environment will undoubtedly affect the approach that the judges take.

For instance, the political haemorrhaging that is going on at Jubilee, in favour of parties that publicly oppose BBI is not helpful to the appeal. It sends the message that the initiative is grossly unpopular and anti-people. Consequently, those who desire its survival must keep public focus on the social and political benefits of the BBI, and refrain from unhelpful attacks on the Judiciary. The public case for why Kenya must have an expanded Executive and its relationship to national unity and nation-building must be vigorously made.

The reason why we must enhance the profile of the losing presidential candidate and its relationship to acceptability of election results and post-election peace must be articulated convincingly and consistently.

The case for constitutionally mandating increased revenue allocation to counties to imbue equity and social development, must be publicly made. Anyone hoping for the resuscitation of BBI must keep the public conversation on these BBI ideals loud and live.

I also believe that absent of politics, most of BBI’s detractors have no significant issues with its content. Indeed, some of its biggest detractors are its biggest beneficiaries! 

Many are opposed to it because they feel it was being rammed down their throats. As one senior civil servant was quoted as saying, the public would be forced to swallow it like Malariaquin, bitter but necessary.

In a Kenya extremely sensitive to autocracy, this did not help the BBI brand. Is there a place for a “behind the tent” conversation that brings political consensus on the need to keep BBI alive for the good of Kenya?

Any genuine attempt at political consensus, even if unsuccessful, is helpful to the case. The current silence by its promoters, who appear still shell-shocked by the High Court loss, is concerning.

The lack of strong confident and positive message on why Kenya needs many of the BBI proposals is creating an environment which will make the courts believe they are performing a public duty in throwing out the appeal. It does not have to be this way.

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