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No one can ambush us with legal tsunami

By Gerald Kithinji | August 23rd 2021

No longer will our country be an insular State on the legal front. [Denish Ochieng, Standard]

At long last, it’s done. No one can ambush Kenyans with a political-legal tsunami, aided by the system. Since the President can be sued in his personal capacity for unconstitutional engagements, it is a major deterrent on the current and future presidents.

While past presidents could not be sued while in office, we will have tamer presidents who can be sued. This will have far-reaching consequences. All those State officers who want to push their way around, will withdraw their claws.

No longer will our country be an insular State on the legal front. The Court of Appeal judges ruled that our Constitution has a basic structure, with eternity clauses which we cannot amend.

It is like a Cathedral with the foundation stone, the cornerstones, the walls, the Roof and the Spire.

You cannot keep changing these at random. There are other countries like India, Germany, France, which have such constitutions. So we can draw from their more developed jurisprudence. After all, our Independence Constitution was a creature from the Americas. We rank with the more mature democracies courtesy of our courts.

Our Supreme Court, High Court and Court of Appeal judges have shown they can be bold and fiercely independent. Any future Presidential handshake will not go beyond the elbow. There will be no room for forced handshakes.

You lose an election and you go your way. You don’t camp outside the president’s home in the hope of being invited for a handshake. What’s more, other judges and magistrates are now going to reappraise the way they operate.

It’s clear now that government functionaries have not read or having read, have not understood the 2010 Constitution. Neither have the citizens. From now on, we need to take more time with the constitution. Understand it.

The amazing thing is that even the Attorney-General and his people have, at times, not given the President functional advice on the Constitution.

Otherwise, the President might not have started the BBI road show. The moment the President showed his footprint in BBI as promoter, people began to ask a nagging question, what’s in it for him?

 We have seen peace and unity initiatives around Africa and some have been held right here in Kenya. None of them have been celebratory before agreements are made.

They are solemn affairs. Here, we saw bands of rowdy, extravagantly well oiled, dismissive men and women on podiums and their adoring crowds, roam the county stadiums, shouting themselves hoarse daring anyone to stop reggae.

That’s not the way to make peace and create harmony. I saw peace right here in Nairobi yesterday, after the sobering rendering of the decision in the BBI case. Now let’s talk.

Politicians had better read all the literature around what they are engaged to do. We have the IEBC and yet politicians think they can create and distribute constituencies. The Court of Appeal confirmed the incisive decision of the High Court that they cannot usurp powers of institutions.

Did you ever have multiple questions at school? It is not easy to jump from mathematics to geography to chemistry unless you are a genius. Politicians wanted Kenyans to do exactly that with BBI. The Court of Appeal said no way.

Ask a single question for each article you want to amend. Otherwise forget it. That way they will not be able to put you in a catch 22 situation.

The commendable novelty of each judge reading separate judgments is an old one. In the Anarita Karimi Njeru case, Justice Law, JA, had written his dissenting judgment but Chief Justice Wicks denied him the space to read it.

Justice Law reported the matter in person to Charles Njonjo, the Attorney-General. But nothing happened.

The president and his deputy parted ways. Erstwhile ‘brothers’ acrimoniously parted ways. Instead of fostering unity, the BBI created a major rift between politicians, and the people. It was about to consign several politicians into a cacophonous election fever but the BBI decision has tempered the waters.

It has taken the wind out of the sails of many of them. The Court’s decision to deal BBI a death-blow means we will never see the likes of it, ever.

Now we know that the Constitution has an implicit basic structure which is a shield. It protects the foundational structures of the Constitution from illegal changes not involving wanjiku as the initiator with consequent activity.

It cannot be amended without a very onerous route akin to writing a new constitution. In a ten-hour super judgment, the Court of Appeal confirmed the supremacy of wanjiku as far as Constitutional tinkering is concerned.

She has to know what she is changing and whether it is good or bad for her in any constitutional amendment. She cannot be railroaded to support an omnibus referendum.

Government cannot keep some institutions understaffed in order to make it easier to manage. Institutions like IEBC have to raise a proper quorum to pass decisions. IEBC has operated with three commissioners even though the quorum is five. 

The County Assemblies that passed the BBI Bill without even reading it are now smarting. They had placed so much importance to something they little understood.

But the soothing ointment that they allegedly got as an incentive might come to their aid every time the hurt appears.

Gerald Kithinji is a lawyer

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