Nullification of BBI wasn't shocking, it was the language used by judges

There aren’t many case rulings that surprise people and have lasting impact on the society concerned and beyond. The few that do become reference points to be studied in schools of law and as part of the history of a particular place.

Because of its influence, landmark cases in the United States are well known. There was the 1733 John Peter Zenger media case in New York in which the jury acquitted Zenger for publishing unpleasant truths against the governor and thereby established the principle that truth was a defense against libel.

In the 1857 Dredd Scott case, the court nullified the Missouri Compromise decree that black people were not citizens and not contemplated in the phrase “We the people”, setting the stage for the Civil War, and was largely responsible for the 14th Amendment that defined who a citizen was. The 1896 Plessy decision essentially justified segregation that the Warren court overturned in 1954 in the Brown case.

In Kenya, previous surprising or unexpected decisions included Justice Jacob Barth’s 1923 ruling that Africans had no right to land in Kenya because all land was “crown land”. 

In 1986, Chief Justice CB Madan gained reputation for releasing Stanley Githunguri to go ‘face Mount Kenya’ and enjoy his wealth. Then Chief Justice David Maraga surprisingly nullified Kenya’s 2017 presidential election on account of procedure. A few years later, Malawi’s court followed Kenya’s example and nullified a presidential election.

The High Court delivered a judicial thunderbolt with far-reaching impact, like the Maraga decision, even if the Court of Appeal overturns it. This is because it decided more than BBI matters, accused “Mr. Uhuru Muigai Kenyatta” of willfully violating his oath to defend the Constitution and by implication Uhuru is not fit to hold office. A sitting president, the judges asserted does not enjoy absolute immunity and can be sued in courts of law.

The BBI Constitutional Amendment Bill, the court noted, proposed creating constituencies and allocating them to specific counties and yet it did not have mandate to do so. It usurped the work of the IEBC which, as currently constituted, was incapable of doing its work because it does not have mandated quorum of five commissioners. Only the IEBC, the court asserted, can delineate constituencies following elaborate procedures. IEBC is also required to conduct continuous voter registration, which it does not do, yet the youth who turn 18 every day are many and have rights to vote.

A referendum without an updated voter registration would be invalid. The IEBC had properly verified and rejected signatures in the 2016 OKoa Kenya Initiative on account of signatures not matching registered voters. It failed to do the same in 2021 with the BBI signatures. It lacked capacity to do anything. The court then proceeded to prohibit IEBC from conducting any referendum.

Although the judges poked many holes in the entire BBI process, there is the possibility of appealing, and stakeholders should. The surprising part on the decision to throw out BBI and incapacitate IEBC was not that the nullification; the surprise was in the language and the tone used to give the judgement. It sounded personal to “Mr Uhuru Muigai Kenyatta”. The judges seemingly took opportunity to vent judicial displeasure on  the president. By declaring Uhuru to be a virtual constitutional criminal, the judges essentially invited the suing and removal of the president from office.