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BBI court ruling a major victory for constitutionalism

By Ken Opalo | May 14th 2021

In a strong indictment of the constitutional vandalism of a large segment of our political class, on Thursday the High Court found the BBI constitutional amendment process to be unconstitutional.

The ruling exposed the weakness of the legal brain trust around President Uhuru Kenyatta and former Prime Minister Raila Odinga.

Both men have been the champions of the BBI process and have staked their respective political futures on the success of the initiative. Yet, as the judges rightfully pointed out, in trying to salvage their political futures, they ran afoul of the current Constitution. For all intents and purposes, the BBI process is dead in the water.

The ruling is an important victory for constitutionalism. A few specific pronouncements stood out. The popular initiative route of amending Katiba is a preserve of regular wananchi and not public officials.

Public participation in the lawmaking process is sacrosanct. Constitutional bodies like the IEBC must be duly constituted for them to take lawful actions. And above all, the basic structure of the Constitution can only be altered by wananchi through their constituent power, and not by public officials. In other words, there are no shortcuts to amending the Constitution.

Ominously for Uhuru, the court found him to have violated Articles 73 and 131 of the Constitution. It also determined that he can be sued in his personal capacity while in office. These are important reinforcements of the idea of the rule of law and limited government.

They also highlight the significant gaps that exist in the president’s legal brain trust. Considering these developments, the Attorney General and his team should resign in shame.

Most Kenyans of goodwill have long noted that the BBI process was ultimately about a political pact between Uhuru and Raila. Their folly was to make it a personal affair, instead of genuinely opening the process to popular participation.

On Thursday, the High Court reminded us that the business of State is the people’s business.

The writer is an assistant professor at Georgetown University

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