Judges of the Supreme Court on January 19, 2022 during the day two BBI appeal case hearing.[Collins Kweyu, Standard]
After a grueling session for parties supporting the Building Bridges Initiative (BBI), it was time for the shoe to be on the other side as judges took over with questions that caught some lawyers off guard.
The second day of the BBI hearing at the Supreme Court was also characterised by light moments and high octane analogies as the lawyers tried to outdo each other with sarcasm, irony and metaphorical language to drive their point home.
Lawyer Kamau Karori, representing Attorney General Kihara Kariuki, brought the entire court to laughter when he found pronouncing “Liechtenstein” difficult and asked the court to allow him to spell out it instead.
“My Lords and my Ladies, I would prefer to spell the name of the country because it seems I have a problem pronouncing it,” said Karori.
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Karori was reacting to a question by Justice Isaac Lenaola who wanted him to give an example of any country where the president had initiated the process to amend the Constitution through a popular initiative.
The judges also want to know why President Uhuru Kenyatta passed the button to Suna East MP Junet Mohammed and former MP Dennis Waweru as BBI promoters if there was no law that barred him from initiating the process.
Just like at the Court of Appeal and High Court where the issue of the doctrine of basic structure and its applicability in Kenya was contested, Supreme Court judges also singled it out and asked the lawyers for clarity.
“It seems like the basic structure doctrine is the elephant in the room. What we want to know is why the appellants pushing for the BBI agree that our Constitution has a basic structure but that the doctrine is not applicable to us,” said Justice William Ouko.
It is a question all parties never seemed to agree on and each took their time explaining what they believe is the correct interpretation of the basic structure principle.
Chief Justice Martha Koome sought to know why the BBI secretariat drew allowances if the process was a public-driven initiative while Justice Njoki Ndung’u asked where in the Constitution they can locate the four sequential orders of amending the Constitution as declared by the Court of Appeal.
When his turn came to oppose the BBI appeals and support the Court of Appeal's declaration that the process is illegal and unconstitutional, lawyer Nelson Havi started off with an analogy of the elephant and a goat who believes getting justice will take an eternity.
Havi equated the court dispute over BBI to the goat which believed that a simple issue such as agreeing on what the basic structure is may take 20 years to determine.
