Verdict on BBI unmasked our varied attitudes to rule of law

Last Thursday, a bench of five judges at the High Court delivered a decision that has been the talk of the weekend and will be for a long time.

The judgment was about the Building Bridges Initiative (BBI) bid to amend the constitution through a popular initiative, that is, by an act of the citizens rather than through the legislative bodies.

The key changes that the Constitution of Kenya (Amendment) Bill, 2020 sought were serious and profound — such as the re-introduction of a parliamentary system in which cabinet ministers would be elected members of the National Assembly. The other change is the introduction of a judiciary Ombudsman appointed by the President. There was also proposals to change the designation of cabinet secretaries to cabinet ministers. Another meant to increase the number of constituencies by about 70.

The changes that the Bill sought to impose on the constitution would have been of great significance regarding the structure of the executive arm and its reach and influence over the functions of the other branches.

Citizens who sought to challenge the legality of the BBI process and the contents of the proposed constitutional amendments on a number of grounds filed eight cases. These cases were heard together and judgment delivered last Thursday.

The main issue was the question as to whether the design of the constitution could be changed in the manner in which the BBI process sought to do. 

The other issue was whether a BBI task force and steering committee appointed by the President constitutes a popular initiative in constitutional amendment. The third issue was whether the Independent Electoral and Boundaries Commission (IEBC), without a proper number of commissioners, could properly conduct the referendum.

Legal quorum

The judgment answered all these questions in the negative. The court said the constitution had an innate structural design whose change could not be made by ordinary amendment processes controlled by the government bureaucracy. This was reserved only to the citizen though a system started by the citizens themselves and not any public officials or any other institutions of government. 

The High Court judges were clear that the public participation requirement in the constitution in the management of public affairs is not a salutary exercise. It must actually involve a level of transparency and real opportunity for the citizens to contribute meaningfully on the proposals.

The court decided that, even if all the processes had been fulfilled as required by the constitution, a valid referendum could not be carried out if the number of commissioners in office do not constitute the legal quorum for the IEBC.

The judges went ahead to make findings that the President, by establishing the BBI process in the manner that he did , ran afoul of the law and had fallen short of the leadership and integrity requirements under the Chapter Six of the constitution.

By these findings, the court effectively put a stop to the constitutional amendment process and the contents of the so-called BBI Bill were declared unconstitutional. The anticipated referendum that was to be held in July of this year is also stopped.

Many were surprised by this turn of events and have praised the judges for their bravery. On the other hand, supporters of the initiative are unimpressed and argue that the decision was unduly intrusive and derived from an area of politics from which courts should refrain.

Vetting process

There are those who are asking how and why a national endeavour such as a constitutional amendment anticipated under the BBI should have fallen afoul of so many constitutional hurdles. 

The answer is simple — the judiciary is the only arm of government that internalised the changes in the national administrative and governance architecture, which the constitution of 2010 heralded. I would add that the judiciary is the department that felt the revolutionary firmament of the constitution as soon as it came into effect. This was the Judges and Magistrates Vetting Board, which took all judicial officers through a vetting process. Whether one survived the vetting or not, it signalled that there was a new dispensation and a new constitution. None of the other branches of government felt this.

Suffice it to say that both the executive and the legislature remained in office after the promulgation of the constitution in 2010. Business remained as usual. The bureaucrats in the executive retained their offices without much change. Parliament remained in office until 2013 and number were re-elected to go on with life as normal.

The legislature and executive branches of government vacillated where they could and, in some instances, engaged in active efforts at undermining the full implementation of the constitution. In a sense, they were the principal beneficiaries of the order, which the constitution of 2010 sought to change.

This explains why the judges, in their ruling, spent about 20 pages on the history of the constitutional reform process in Kenya. 

In this regard, the judiciary, at least a good component of it, remains the one institution that is alive to the reality of the centrality of the ordinary citizen in the constitutional architecture.

Overall, last Thursday’s decision to stop the BBI is not merely about the judiciary appreciating a new constitutional order.

Bitter pill to swallow

It revealed a lot about Kenyans — including many who are celebrating the High Court’s ruling in the case. 

Many failed to accept that the constitution of 2010 did not intend that the rule of law be a matter of choice for any citizen, authority or office. The principle that all are subject to the law is still a bitter pill to swallow for most Kenyans. My personal view is that the decade since the constitution was promulgated has reveals three kinds of Kenyans in terms of their attitudes and approaches to the constitution. 

First are the reactionaries who never wanted the constitution and who opposed it before and after promulgation. The constitution upset their hallowed status in the old order and they do anything and everything to undermine it. They only point to it when targeting their political opponents or seeking to derive gains for themselves.

Next are the middling sort, who push for the constitution to be upheld and appear to be progressive but are quickly co-opted into either political, commercial and parochial ethnic interests which makes them argue that the constitution is foreign and too expensive, euphemism for we can side step it when necessary. The reality for these people is that they want the benefits of the constitution for themselves but not for all citizens.

I would say the progressives are the people who fought for and continue to push for the constitution’s implementation. The constitution was for some of them the work of their lives. They retain support for it and are called “activists” for their commitment. They led the charge that resulted in Thursday’s judgment on behalf of the constitution.

These categories are not limited to individual citizens. There are institutions and arms of government, which also show hostility towards the constitution, and those which seek to implement it fully.

The judiciary is certainly on the progressive side and will remind us once in while that the rule of law is not a banquet buffet where we pick and choose those constitutional provisions that suit our political taste. The law must be applied equally for all and in all its tenor and effect.