BBI : The king must retreat and commune with the gods

President Uhuru Kenyatta looks on as Hillary Clarence, a class 7 pupil at Westlands Primary School in Nairobi, waters a tree that the Head of State had planted on arrival at the learning institution for a joint virtual visit with Prime Minister Boris Johnson of the United Kingdom.[Standard]

In the history of nations, there are days that bring forth events that fundamentally and perpetually alter the trajectory of a nation and its society thereof.

Thursday, May 13, 2021, I believe, is one such day in Kenya’s history.

There was a deafening silence on State House and at Capitol Hill while on social media, Kenyans were in jubilation.

The reason for the shock waves was a 321-page High Court ruling from a five-judge bench.

Before them were eight separate cases consolidated into one, challenging the constitutionality of various elements of the Building Bridges Initiative (BBI).

The petitioners had collectively made 71 prayers to the court and it would summarise that into 17 questions for determination.

In a bold and shocking judgment, the bench would return a unanimous verdict, making a determination and a declaration in favour of the petitioners in 13 of the 17 questions.

In fact, the bench seems to have exercised a lot of restraint in declining to grant orders for personal culpability on the subject of public resources spent on BBI activities.

The king needs some solitude

Accounts from historical figures show they sought occasional solitude to reflect, re-energise and reconnect with their genius.

Even Jesus, Mohamed and other known spiritual leaders retreated to the mountains to seek divine intervention and strength.

For the purpose of this article I seek not to opine on the legal merits or demerits of the ruling for obvious reasons.

My interest is the contextual, leadership and economic import of the ruling.

It is without a doubt that the ruling hit the sanctums of power and political leadership hard.

To say the least, the king was not only left naked, but highly exposed to future legal complications.

Not surprisingly, many legal questions, unconstitutional pronouncements and court orders have been ignored.

But this particular one brings into sharp focus three primary questions: one, who are the president’s men and what is the quality of advice they give him?

Two, did the king forget his true subjects in Egypt while he thought he led them to Canaan?

Three, could this be the tip of the iceberg in the broader scheme of things within national and county levels of government?

Contextual substance of the ruling

First, those who are aggrieved by the ruling have been quick to imply they will at the Court of Appeal.

It seems to escape their minds that the High Court has a premier jurisdiction on the interpretation of the Constitution as per Article 165(3)(a)(d).

Secondly, it is naïve for anyone to imagine the five judges would be ignorant to the weighty constitutional questions placed before them, their political ramifications, their impact on the sanctums of power, and the implication of their decision in future.

In the circumstances, one would expect them to go the extra mile to find conclusive evidence, sound doctrine and Solomonic wisdom to render their decision and choice of words.

Third, to argue that the appellate courts will simply find grounds to set aside those weighty questions or due to  calls from elsewhere is to ‘character assassinate’ not only the courts, but also the individual justices who serve in them.

Fourth, it is noteworthy that all the political heavyweights, the real or imagined tribal kings and senior public officials, were deeply entangled into this reggae dance.

It is just baffling how these basic constitutional matters escaped them.

The legislature is equally endowed with great legal minds, but how did this pass everybody?

If the accounts on social media and comments in mainstream media are anything to go by, it appears ordinary folk moved the battleground.

While their elected representatives imagined they were heading them to Canaan, it seems they had long decided to turn the battle in to a spiritual one.

Here we could stretch our imagination.

The electorate seems to have noticed that the State and instruments of power had been turned against them.

Also, maybe from past experiences, when they saw almost all their elected representatives coalesce around the ‘snake’ unanimously, they knew it was not about them and their interests.

Lessons from icons of history

Four men from whom our leader can learn quickly come into mind.

Abraham Lincoln at Gettysburg, on November 19, 1863, weighed the essence of the moment to sum up the consequences and costs of his country’s civil conflicts in just 272 words.

Our five justices seem to have imported the spirit of his famous words that: A Constitution of the people, by the people and for the people cannot be simply annulled from a gentleman’s agreement, concocted in a boardroom and sanitised with impartations of political machinations to give it legitimacy.

John F Kennedy, in his inaugural speech on January 20, 1961, understood the impacts of the Cold War, the challenges the world faced and the burden his country carried as a Super Power.

He would implore his fellow countrymen and women not only to raise the bar of patriotism, but also inspire them to conquer the moon.

Nelson Mandela, as he walked out of the gate of Victor Verster prison on February 11, 1990, his wit and charisma reminded him he would remain a prisoner if he did not leave behind the bitterness of 27 years in incarceration.

He understood his nation needed the best of him to heal from the racial injustices and atrocities suffered by those of his race.

In most recent history, scholars of presidential speeches seem to agree that Barack Obama’s speech at Selma, Alabama was his finest.

The function was the 50th anniversary of the atrocities meted out to marchers for voting rights movement at the Edmund Pettus Bridge.

Here, he talked of battles not of military armies but of wills that inspired generation after generation to advance the American Dream and raise the bar of patriotism.

In all these instances, the four men chose to rise above the pains of the moment, the political shenanigans of the times, and the inherent individual greed, their political parties and their men, to inspire the nation.

They found the voice to speak directly to their true constituents – the poor, weak and downtrodden and motioned them into action in good faith.

I want to believe that this is the law of unintended consequences that the five judges have offered to the president.

The ball is in his court in the dying months of his governance.

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