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Judiciary’s finest hour or elites’ reckoning moment?

By Andrew Kipkemboi | May 16th 2021
The High Court declared that their BBI project that germinated from the March 2018 handshake was unconstitutional. [Samson Wire, Standard]

The thunderbolt judgment upholding the consolidated petition against the Constitution Amendment Bill 2020 offers sobering lessons.

First, is that our Judiciary is solid. Second, in an age where conforming is the rule rather than the exception, telling off an overbearing, bullying Executive is courageous. Third was a reminder that outcome is as important as the process taken to arrive at it. It echoes Chuck Rosenberg’s - a former US Attorney General- contention that the rule of law “is a construct; it is designed; nurtured and safeguarded by people and the institutions for which they work… and that it is “not immutable and so we should not take it for granted.”

For “where the law ends,” said William Pitt, former British Prime Minister in 1770, “there tyranny begins”. Most importantly is that the 2010 Constitution is fool-proof; those with honest intentions of changing it (it is not perfect after all) can only do it through real public participation. Still, the ruling is a shameful indictment of a Parliament that rather than provide oversight has winked at the Executive as it rode roughshod on the other arms of government.

Context is critical. No doubt, the ringing endorsement of the 2010 Constitution was a vote against impunity perpetuated by an ineffective government. In one fell swoop, the 2010 Constitution had turned the tables on the clueless political class and unresponsive bureaucracy. Critics of BBI say the changes contained in the Bill were desperate attempts to alter the new social contract.

After all, baked into the 2010 Constitution are clauses which, if fully implemented, would ensure the adoption of sound economic policies that spur economic growth by opening up the economy to those on the fringes, foster equity, minimise corruption and ensure the rule of law prevails.  

In November 2019, the BBI Taskforce proclaimed that “uniting for change was something they (Kenyans)” could buy “as long as they know that it is going to tangibly benefit them and their families.” It was in reference to our largely exclusivist politics. It added that “bad politics makes problems worse and invents new ones.” Building bridges to a united country sounded like the perfect cure. Yet as the BBI train rolled out of the station, fissures opened up. 

Most notable to Wanjiku is that though that report scorned at government for “spending too much on itself” and proposed that “the burden of government be reduced”, the creation of 100 plus seats for MPs and the expansion of the Executive was a complete reversal that left a sour taste.

President Uhuru Kenyatta might want to take counsel in Peter Hennessy, an English professor of History and Government who has done research on what he calls the “emotional geography of power”. A leader, he argues, ought not just be decisive, he needs to bend backwards to cut a deal that is good for the common good. That means taking risks, seeking alternative opinion, accepting dissent and deftly winning and co-opting your opponent.

For Raila Odinga, what he does next will count for so much. His measured statement on Saturday was statesmanlike. With President Kenyatta’s time running out he needs to tactfully extract the much he can from the handshake. Electoral reforms should be one of those. Whatever the outcome of the planned appeal, one wonders whether future generations, to paraphrase Sir Winston Churchill in a 1940 speech, will say this surely was the Judiciary’s “finest hour.”

Mr Kipkemboi is Partnerships and Special Projects Editor, Standard Group


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