BBI judgment: Uhuru's worst nightmare since Maraga's 2017 shocker

President Uhuru Kenyatta speaks during a joint statement with Tanzanian President Samia Suluhu Hassan at the State House, in Nairobi, Kenya, on May 4, 2021. [Reuters, Baz Ratner]

President Uhuru Kenyatta has been exposed politically by Thursday’s High Court ruling, which could trigger a litany of suits and a possible bid for impeachment.

The five-judge Bench accused the president of violating chapter six of the Constitution, after consolidating cases from several litigants challenging the constitutional review process through the Building Bridges Initiative (BBI).

Yesterday, ICPK director Ndungu Wainaina said the BBI process could not be salvaged after the ruling, adding that the judges had made it clear that the basic structure doctrine limits the amendment power. “The basic structure can only be amended by the primary constituent process,” said Wainaina.

During the ruling, the judges also said civil court proceedings can be instituted against the president. Legal experts yesterday said President Kenyatta’s remaining tenure could be in limbo, legally. They said unless the judgment is overturned on appeal, the finding by the five judges was a clarification of the law that the president should observe the limits set by the Constitution and the law.

However, lawyer Kibe Mungai said although the verdict can be the reason for impeachment, it will be a herculean task because the president enjoys majority support in both houses of Parliament. “It is not very new, it is a clarification that the president can be sued in his personal capacity and not about his functions, for example, if a president is to rob a bank, he will be sued as an individual and not as a president. That is the correct interpretation in most countries. That is proper finding,” said Mungai.

The five judges were of the view that the President is only protected from such actions in respect of anything done or not done in the exercise of their powers under this Constitution. “Assuming, in his tenure, the President embarks on a mission that is not only clearly in violation of the Constitution but is also destructive to the nation, would it not be prudent that he should be stopped in his tracks rather than wait until the lapse of his tenure by which time the country may have tipped over the cliff?” they posed.

The judges were determining President Kenyatta’s role in the BBI process. However, the court is split on if he was justified or had powers to appoint the BBI task force. On one hand, Justice John Mativo said the president was right, while the other judges found that he had breached Chapter Six of the Constitution.

“The President cannot be said to have acted ultra vires the Constitution. He acted intra vires in taking steps to achieve this noble constitutional requirement. The President’s decision meets both the proportionality and rationality tests which are core requirements for the decision to pass the principle of legality test,” Justice Mativo ruled on the formation of the BBI task force.

Yesterday, a senior counsel who sought anonymity, said President Kenyatta did not act out of the blues in forming the BBI task force. He also argues that by the Judiciary participating in the process, it had given its thumb of approval.

Presidential petition

“The Judiciary participated in the BBI process. They for example, sought for extension of the time of hearing of the presidential petition. How can the Judiciary participate in the process and then turn around and say the president should be impeached for it?” he posed.

Lawyer Jackson Awele said if there are different interpretations on the President’s role from the High Court, then it is for the Court of Appeal to iron them out. “If there are issues which are not in sync, it will be for the Court of Appeal to harmonise them,” Awele said.

Notably, it is the second time that the High Court has found that President Kenyatta can be sued in person. In the first case, involving the swearing of 41 judges, High Court judges George Dulu, William Musyoka and James Wakiaga found that the Constitution does not shield the president from being dragged into a constitutional or judicial review court even when in office. The three judges, however, pointed out that he should not be sued in person but through the Attorney General.

Yesterday, Law Society of Kenya (LSK) president Nelson Havi said the 321-page judgment is an indictment to President Kenyatta. He said the breach of the Constitution was a serious issue that he can be personally held accountable for. According to him the judge’s reference to the President as Mr Uhuru also amounted to stripping him of his status as Head of State.

“There is no decision of the High Court that is as clear on the misconduct of the President as this one. On the judges’ appointment, they just said if he had just breached the Constitution, if it were in Israel or India, he would have resigned. You realised they have referred to him as Mr Kenyatta; they have stripped him the stature of a President. Unfortunately, Parliament is emasculated and will not impeach him but it will go a long way to dent his image as a leader,” Havi said.

But early in the week, President Kenyatta and ODM leader Raila Odinga had rallied the National Assembly and the Senate to overwhelmingly endorse the BBI Bill, setting the stage for a constitutional review. Only a public endorsement through a referendum was awaiting until the High Court’s shock ruling on Thursday. The push for law review began with their March 9, 2018 Handshake, following the controversial 2017 presidential elections. But the journey to change the 2010 Constitution has not been rosy, after the BBI received a lukewarm reception from Deputy President William Ruto, a voracious civil society that sought to derail the process and then the Covid-19 pandemic, coped with a struggling economy.

After the BBI sailed through in Parliament, both Speakers said they were preparing to hand over the Bill to President Kenyatta. “We have finished our role and are waiting for the President to give us an appointment so that we can jointly present the Bill,” said Senate Speaker Ken Lusaka. His National Assembly counterpart Justin Muturi said they had cleared their part. “The staff are going through typos and referencing errors before booking an appointment with the president,” said Muturi.

But there had been another hurdle to the process. In February, a five-judge Bench had barred President Kenyatta from assenting to the Bill should it be passed by the bicameral Parliament. They ruled that the amendments would not come into force until determination of the petitions challenging the process. Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka issued the orders following an application by Thirdway Alliance, a week ago in Nakuru.

Thirdway Alliance lawyers had applied to have the National Assembly and the Senate barred from acting on the resolutions by county assemblies.