Constitutional Court BBI Judgment restored the rule of law and sovereign of people

 

The bulwark of Kenya’s fragile highly ethnicized democracy is the rule of law. The implementation of the Constitution of Kenya 2010 is the foundation and yardstick of conso0liodating constitution democracy.

Each Chapter of the 2010 Constitution is underpinned by four core pillars namely inclusion, participation, openness and equality. The Constitution, supreme law, which was only realized after more than 30 years of protracted struggle provides for vertical and horizontal checks and balances.

The 2010 Constitution was a negotiated political settlement upon which Kenya was to remain a unitary state. At the core of this constitutional agreement is the social and political covenant based on principles of the:

Sovereign of the people,

Supremacy of the Constitution,

Bill of Rights

Uphold the dignity of every citizen, every community and every region

Equitable society, equitable development and shared prosperity  

Devolution of power, resources and services

Incisive participatory democracy

Separation of powers and checks and balances  

Throughout the one party personalized rule dictatorships of Jomo Kenyatta and then Daniel Moi, arbitrary amendments and disregard for the independent t constitution entrenched impunity, centralized power and flagrant violation for the rule of law without consequences. This placed Kenya on a perilous path of tribal acrimony, institutionalized impunity and state violence.

The blatant amendments to the old constitution were self-serving and scornful of the doctrine of separation of powers. Jomo Kenyatta (1963-1978) effected 13 fundamental amendments to consolidate power in the executive. Killing regional goverments, judicial independence, etc

Daniel Moi (1978 - 2002), legally abolished multiparty politics and constrained the political space further. Another of his amendments removed the tenure of judges. This eroded judicial independence by placing the judiciary under executive control. Mwai Kibaki (2002-2013) stonewalled constitutional reform, squandered a moment of national rebirth and pushed Kenya to the precipice in 2007.

That disputed 2007 election exposed Kenya’s fragile democracy and underscored the indispensability of rules-based politics. This forced the country to enactment of the 2010 constitution, through an all inclusive participatory process.

The letter and spirit of the 2010 constitution are yet to find traction especially among the top-ranking political elite, key civil servants and security operatives. Due to bigotry and fraud policy, they find the 2010 Constitution as inconvenient handcuffing their official impunity.  

The Constitutional Court Division of the High Court of Kenya judgment declaring the Building Bridges Initiative (BBI) unconstitutional, null and void heralded restoration of political sanity and defending the rule of law. The 2010 Constitution is a watershed of people-centred values and principles. It was supposed to provide a framework for good governance and to reengineer the polity. The constitution is not responsible for Kenya’s fractious politics and state excesses. Impunity is. Kenya’s democratic gains must be safeguarded.

The judgment was an unequivocal message that a prerequisite for Kenya’s democratic renaissance is leadership that is immersed in the national values that are contained in the 2010 constitution. The BBI process is nothing but a spoils politics and self-preservation.

The Constitutional Court division of the High Court of Kenya did not determine a single PETITION. There were several petitions consolidated. Each Petition had specific procedural, law and constitutional issues it wanted determined. Once consolidation was done, all Parties agreed and framed issues of determination. To understand Constitutional Court BBI Judgment one needs to read and understand petitions. The Court, in a judgment of 326 pages , 23 Orders and 90 footnotes, made determination that:

• Popular initiative to amend Constitution cannot be spearheaded by the president or state officer.
• BBI taskforce gazetted by President to lead Amendment of Constitution lacked the lawful mandate 
• No legal framework and procedures for determining and governing Referendum 
• IEBC is no legally constituted and lack a quorum to conduct Referendum processes.
• No Constitution Amendment civic education and voter registration for purpose of Referendum 
• Entire BBI process including Constitution Amendment Bill done unconstitutionally and usurpation of people's constituent sovereign power 
• President is guilty of violating chapter 6 for initiating and promoting Constitution change contrary to relevant Constitution provisions and oath of office. 
• BBI created 70 constituencies and apportioned them to Counties unconstitutionally.

Linda Katiba strongly applauds the High Court of Kenya's groundbreaking BBI judgment. The ruling restored and reasserted the sovereignty of the people of Kenya and the supremacy of the Constitution. It illustrates the transformative feature of the 2010 Constitution.

The Constitutional Court ruling provides a detailed analysis of how the threat to constitutional democracy goes beyond that posed by an individual. It illustrates how that individual embodies a political culture fundamentally antithetical to democracy and constitutionalism.

Though key members of Linda Katiba were the main pivotal petitioners, this is a victory for the people of Kenya in protecting the progressive Constitution and defending constitutional democracy. The Constitutional Court BBI Judgment is a pivotal decisive model of the bold judiciary. The judgment affirmed:

2010 Constitution tenets of participatory model of constitution-making;

The primacy of the primary constituent power of people;

Deterrence of hyper-constitution amendments by state or individuals leading to    Constitution without constitutionalism and the rule of law

Protection of the eternity provisions of the Constitution i.e. Articles that only people can change through an intensive participatory process and exercising their primary constituent power;

Centrality of citizen-led public participation in matters of Constitution

Kenya Judiciary firmly stood ground as the last bastion of defence of the Constitution and the rule of law. It has also asserted judicial authority is derived from Kenyans and that it will enforce the purpose and objective of the Constitution without fear of being cowed.

The unjustifiable, feeble and baseless attack and threats directed at the judiciary and individual judges by political anarchists is deeply troubling, retrogressive and barbaric. It is very unfortunate state officers including Cabinet Secretaries contrary to Constitution and without reprimand from President have the audacity to be part of spreading falsehoods, propaganda and threats. We demand it must stop forthwith. It very troubling to see state officers threatening Kenyans with state violence if BBI collapse.

All state and public officers who violated the Constitution, law and used taxpayers' in BBI should immediately be sacked, prosecuted and surcharged for refund as per Article 226 of the Constitution. This includes Members of Parliament, who are constitutionally state officers.

The Constitutional Court send an unambiguous signal that Kenyan politicians, beginning with Kenyatta, must submit to constitutionalism – a morally binding fidelity to the rule of law – to infuse trust in the society and confidence in state institutions. The current political climate does not provide much room for optimism since rogue politicians are not sanctioned. This has led to endemic impunity.

President Kenyatta’s regime epitomizes unsavoury attributes of presidential impunity, malfeasance, cronyism, corruption, nepotism and tribalism. There are a number of examples that can be cited. For example, the president routinely disregards courts’ orders.

Mr Kenyatta has also been accused of ethnic bias. His political appointments are tribal and nepotistic. This is in defiance of meritocracy and diversity set off in 2010 Constitution principles on and values of public service.  Mr Kenyatta holds political party meetings at State House contrary to the Constitution. This conflates party and state to recreate an autocracy through threats, intimidation and bullying. He has completely captured and controlled independent democratic institutions.

President Kenyatta abhors criticism and public scrutiny. His presidency has consistently relished ethnic sycophancy, neutered or co-opted those fighting against abuse of power, and adopted selective application of the law that has politicized the criminal justice system.

A state is sovereign to the extent that it exercises authority in the trust of the people, provides public goods, upholds basic rights, and inspires obedience. A sovereign state is responsible and accountable TO THE EPOPLE. But President Kenyatta leadership has eroded the legitimacy of the state, a plurality of views, contestation of ideas, and dissent as the lifeblood of democracy and transformation.

Linda Katiba is set to roll out an aggressive public education on the ruling. Linda Katiba is demanding full implementation of the critical pillars of the Constitution of Kenya 2010 while auditing, through an inclusive people participatory consultation process, from the ground up, of the Constitution of Kenya 2010. The audit will be about illuminating the weaknesses in the Constitution and thereby plugging those gaps so that the voice and visibility of the united Kenya people will lead in the collective decision making of the country’s future.

Signed by Conveners:

Hon. Martha Karua, Dr. David Ndii, Jerotich Seii, Daisy Amdany, Ndung’u Wainaina, Reuben Kigame, Abdullahi Abdi, Boniface Mwangi, Prof Gitile Naituli and Wanjeri Nderi   BY THE STAR