Appeal or not Uhuru, Raila must now change course

ODM leader Raila Odinga and President Uhuru Kenyatta when they received the BBI report.[Standard]

The decision of a five-judge Bench of the High Court delivered on Thursday to the effect that the Constitution of Kenya (Amendment) Bill, 2020 popularly known as the BBI Bill is null and void marks a watershed and turning point for the agenda of the ‘handshake’ and the impending succession of President Uhuru Kenyatta.

Besides the fact that the 321-page judgement was delivered over five hours with poignant aplomb, relish and caustic tone, the decision is remarkable not only because of the devastating blow it dealt to the BBI process, but the numerous shortcomings pointed out by the learned judges and the extent they went to demonstrate that the initiative has no redeeming value. In many ways the judgement was done in such a way that any higher court cannot reverse it entirely without the appellate judges looking pretty bad, and appear to be sucking up to the Executive.

In summary, there are five procedural and three substantive shortcomings pointed out in the landmark judgement. The first procedural defect is that a popular initiative to amend the Constitution cannot be spearheaded by the President or any State officer. Second, the task force of the BBI gazetted by the president in January last year to oversee the amendment of the Constitution had no lawful mandate to do so. Third, the BBI Bill was launched and subsequently processed in the County Assemblies and Parliament without a legal framework and procedures to govern the conduct of a referendum. Fourth, because IEBC has only three out of the minimum of five commissioners it has no quorum conduct the proposed referendum including to verify the signatures in support of the BBI Bill.  Fifthly, the BBI Bill cannot be subjected to a referendum before the IEBC conducts as a nationwide voter registration.

As regards the three substantive matters, the most significant one is the finding that the entire BBI process culminating to the launch of the BBI Bill was done unconstitutionally and in usurpation of the people’s exercise of sovereign power. Second, the judgement finds President Kenyatta guilty of violating Chapter Six of the Constitution on leadership and integrity for his efforts in initiating and promoting a constitutional change process contrary to the relevant provisions of the Constitution. Third, the BBI is unconstitutional for proposing the creation of 70 new constituencies and apportioning them to specific counties which is a function of IEBC.

The cumulative effect of these procedural and substantive shortcomings is that the BBI Bill is incurably defective. Consequently, the learned judges issued a permanent injunction to prohibit IEBC from conducting the referendum now that the National Assembly and the Senate have approved the BBI Bill. In short the BBI Bill is dead and buried unless and until a higher court reverses the High Court judgement in an appeal that must succeed 100 per cent in the eight respects set out above. 

No doubt the juridical hurricane that landed on our shores on Thursday evening has at least three legal implications and five political lessons and effects that partly explain the exuberance and relish in the tone of delivering the judgement and unabashed contempt for the President.

Misguided legal team

The immediate legal implication is that until a higher court reverses the judgement, the BBI process takes an involuntary break and our national priorities must change for the time being.  The reason for this is that the declaration that the BBI Bill is unconstitutional, null and void and the injunction against the IEBC cannot be stayed except through the kind of illegal order of stay issued by the Court of Appeal in Interim Independent Electoral Commission & another v Paul Waweru Mwangi [2011] eKLR to permit the by-election in Kamukunji Constituency after it had been stopped by the High Court.  It remains to be seen whether as currently constituted there are three judges in the Court of Appeal willing to grant the State such an illegal order in the event that the BBI proponents file an application for stay.

The second is to underscore the necessity of fidelity to the letter and spirit of the Constitution.  In my view there was proper basis for the grant of at least seven of the reliefs granted to the petitioners and most of them spring from avoidable legal blunders. From the onset it was intriguing why the legal team of BBI opted to conduct the serious business of amending the 2010 Constitution through presidential gazette notices. Apart from the fact that the choice of presidential gazette notices risked the spectre of exposing the president to personalised illegalities and the kind of humiliation visited upon him by the judgement, that choice was indefensible since the ‘Handshake Brothers’ controlled a majority in Parliament to pass the laws that the Constitution requires to facilitate its amendment.

Third, the president should have the humility to accept that in a constitutional democracy no one calls all the shots. The apparent assumption by the BBI brigade that control over county assemblies and Parliament was sufficient to guarantee the success of BBI has been exposed as a tragic mistake. Moving forward it should help everyone to take the law more seriously and comply with it as much as humanly practicable.

Turning to the political implications, the first thing that should concern President Kenyatta and ODM leader Raila Odinga is the remarkable lack of empathy for BBI process by the judges despite the fact that objectively the ‘handshake’ helped to pacify the country following the divisive 2017 presidential elections, and the BBI contains various proposals to advance public good and addresses genuine political problems. Consequently, there is need for soul-searching by Uhuru and Raila whether they have pushed the BBI process in a manner that has dangerously alienated so many people.

Second, it presents the prospect of Uhuru losing control and influence over his own succession as it happened to President Moi in 2002 after he messed up with Kanu’s internal politics and political ideologies. Given the feud between the president and his deputy William Ruto, it shudders to imagine the DP winning the presidential contest under the current Constitution.

The third political effect of the judgement is the elephant in the room, which should be cast as question: Is it feasible any more to reconcile the BBI agenda with the political ambitions of Uhuru and Raila in the next General Election whenever it will be held?  It would take a miracle to reverse the High Court judgement before the end of June next year, and whatever decision the appellate court takes will certainly require at least two months to repair the damage on the BBI process. In effect the judgement would cost at least six months on the BBI calendar. What this means is that sooner rather than later the BBI proponents must decide the feasibility of seeking to retain or capture power with or without the BBI Bill. There is a high chance these decisions might break the unity among the BBI brigade.

Nuclear blast

Fourth, the judgement has unfairly cast serious aspersions on the president’s honour, reputation and legacy and so he has a personal reason to appeal and reverse it. Hoping that the president’s appeal will succeed on this score, it should concern and humble Uhuru that despite being the Head of State and government a Bench of the High Court had nevertheless chosen to detonate a nuclear bomb on him when a conventional missile would have been sufficient.

Finally, the implication of the judgement on Kenyans deserves a paragraph. Whilst the High Court should be saluted for upholding the sovereignty of Kenyans, we cannot lose sight of the fact that historically high-stakes presidential elections can easily mess up with a country’s stability and compromise constitutionalism.

Without the BBI Bill, the political stakes in the coming presidential election would be even greater, and it is chilling to imagine the uses to which the powers of incumbency might be deployed against the spectre of losing power to a sworn nemesis. Pray for our beloved country.

The writer is a constitutional lawyer

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