How BBI court case strengthens the rule of law

Lawyers James Orengo (left), Paul Mwangi (centre) and Otiende Amollo at the Appellate Court on July 2, 2021, during the hearing of the BBI appeal. [Collins Kweyu, Standard]

Whatever the outcome of the Building Bridges Initiative (BBI) appeal case, Kenyans should be proud about the strides we have made in entrenching the rule of law.

The president and his political associates are figuratively in the dock over allegedly violating the Constitution, with most people believing that the merits of the case do not favour him.

The arguments are being televised live, thereby providing invaluable political education on constitutionalism to Kenyans.

The overall message is clear: no one, not even the president, is above the law. Importantly for us as a country, this entire process is allowing us to strengthen our courts and constitutionalism through practice.

This is an important achievement. Judicial independence is a core pillar of accountable democratic government. As a country, we still have a lot of things to worry about, but that should not stop us from celebrating our achievements along the way.

It took decades of valiant struggle by selfless men and women to get us to this point. We are grateful for their sacrifices and should honour them by forever remaining faithful to the Constitution.

Our courts are far from perfect. However, over the years they have developed the organisational capacity and human capital needed to serve as the guarantors of constitutionalism in Kenya.

The courts’ institutional strength allows us the luxury of going through stress tests like we did with multiple presidential petitions of the recent past and are doing with the BBI case.

Cases like these serve the important role of forcing us to interrogate every nook and cranny of the Constitution. Doing so adds texture to the Constitution, thereby giving it even more relevance to our daily lives.

As we enter the next stage of our political development with its expected bounty of contentious politics and polarisation, we should feel lucky to have a judicial system that has enough capacity to keep us all within constitutional guardrails. Democracy, by nature, is contentious. This is a feature, not a bug. 

-The writer is an Assistant Professor at Georgetown University