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BBI Appeal: Isaac Aluochier, the man who fires from the hip

By Betty Njeru | Jan 19th 2022 | 2 min read

Isaac Aluochier at the Supreme Court. [Standard]

He might have had just an hour to make his submissions before the apex court, but, once again, Isaac Aluochier stood out.

Resplendent in a maroon agbada, the man, who describes himself as an arbitrator, set about his quest at the court of appeal with admirable ease.  First, by questioning the Basic Structure Doctrine, which he argued does not apply to Kenya.

Aluochier argued that the 2010 Kenya Constitution is supreme and no one is above it.

“If our Constitution is supreme, no law can purport to construe or invalidate its provisions,” he told the court.

He said the Basic Structure Doctrine is in conflict with the Constitution and challenges the legality and validity of Article 1 (1) of the Constitution, which states: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

Not one to mince his words, Aluochier posed: "Who is boss in this country? Is it Martha Koome, Uhuru Kenyatta, David Ndii or is it us, the people? If we the people are boss, then our word should rule and prevail.”

He averred that the Constitution has structures and anyone attempting to amend it must follow the four sequential steps.

The activist asked the seven-judge bench to vacate the orders of the High Court and the Court of Appeal made last year, adding that no court had the power or jurisdiction to entertain a challenge to the legality and validity of the Constitution.

Aluochier also noted that the president does not enjoy absolute immunity as suggested by his lawyers and the Attorney-General in their submissions. He argued that he (the president) only has limited immunity with respect to civil proceedings.

“Article 143 (2) gives immunity against civil proceedings being instituted against him, not electoral or constitutional proceedings. After all, we have presidential petitions. We are only talking about civil matters,” he said.

“So, when we hear the president’s team arguing for absolute immunity on grounds outside the Constitution, you must not allow yourself to be misled,” he pleaded.

And before he concluded his submission, the activist urged the court to be impartial in its final verdict.

“Be faithful to the Constitution. Do the right thing.”

Court of Appeal President Justice Daniel Musinga, alongside Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuyyoit on August 20 upheld the judgement of the High Court that declared the BBI process unconstitutional.


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