BBI ruling: Judgment has demonstrated that our constitution is self-executing

Friday’s monumental judgment rendered by a five-judge bench on the BBI process was an emphatic reminder to all Kenyans, and especially those in authority, that adherence to the constitution and rule of law is not optional but a command that all must bow to.

One of the most profound pronouncements in the BBI judgment was that there is a limit to constitutional powers of amendment, of its core (basic structure) which cannot be changed without taking steps similar to the ones taken to enact the 2010 constitution.

Differently put, the collection and collation of views, informed public participation, constituent assembly and ultimately a referendum are some of the processes that ought to be followed by anyone seeking to advance amendments to the basic structure. This well-reasoned judgment is an assurance to us as citizens that the core design of our constitution cannot be tampered with without our full and informed participation and consent.

Our constitution is the covenant that the people of Kenya gave themselves to govern their relationship with those in authority. It explicitly provides that all sovereign power belongs to the people, who in turn donate it to the three arms of government, the devolved units, and to all State and public officers.

 In exercising these delegated powers, the State organs must perform their functions in accordance with the constitution. It follows then, that all those in authority by virtue of this donated power must always be conscious that their employer to whom they must owe loyalty is the people of Kenya.

Constitutional order

Similarly, each arm of government and persons exercising power therein owe loyalty to the people of Kenya and must exercise power within the constitution and the law. In our previous constitutional order, power flowed from the Executive and loyalty was pledged to the President by all public servants.

Under the current constitution, all State officers pledge allegiance to the republic and to the constitution. That the Bench had to call into question the President’s violation of the constitution is, therefore, a wake-up call to those in authority that they don’t exercise power in a vacuum.

With its decision, the court further affirmed our position as Linda Katiba that the entire BBI process was illegitimate and unconstitutional, and a usurpation of the right reserved for the people to initiate amendments through popular initiative.

Further, that a popular initiative should not use State resources or machinery, and that citizens have a right to participate from an informed position.

In its totality, BBI was the opposite of what is envisaged by Article 10. It brewed intolerance to divergent views as demonstrated by the use of police to disperse public gatherings, ejection and public humiliation of those seen to oppose BBI.

We observed threats, intimidation and even inducements (case of MCAs car grants) offered publicly. This is not the democracy we fought for in the second liberation nor the open and democratic republic envisaged in the constitution.

In addition, the BBI judgment reproduced verbatim some of the provisions of Chapter Six on leadership and integrity which define authority of a State officer as a public trust to be exercised among other things in a manner that demonstrates respect for the people, promotes public confidence in the integrity of the office and to serve the people rather than rule over them.

Integrity test

This emphasis on the integrity test, which culminated in their finding that the President Uhuru Muigai Kenyatta has failed the integrity test is a wake call to all persons exercising authority on behalf of the people of Kenya. It is a call upon each and every such person to ponder on their acts and or omissions in the discharge of their duties, and to ask of themselves whether they pass the integrity test.

Unless and until a majority of public servants embrace integrity in discharge of their authority and duties, the benefits and promise of our transformative constitution will keep eluding us. We, therefore, have a duty as citizens to keep eternal vigilance, to continuously hold the accountability bar high and to tirelessly protect and defend the constitution.

To this end, I commend the patriotism of the citizens and organisations among them my Linda Katiba colleagues, the indefatigable Jerotich Seii and David Ndii for petitioning the court, resulting in the BBI judgment.

The centrality of the principles and values of governance among them inclusiveness, public participation was also emphasised in the judgment. A process such as the BBI, which sought to alter the governance landscape, cannot happen without the proper involvement of the citizens through a robust, participatory process in which citizens have adequate access to the information.

One hopes, therefore, that Parliament is listening and will use this judgment to redefine public participation and make it more meaningful not only in matters constitution but also in police and legislation. The development of a legal and constitutional framework to guide public participation should therefore be prioritised.

Finally, rather than throw barbs at the court that admirably discharged its role as the guardian of the constitutional transformation, we ought to, regardless of our political alignments, calmly read the judgment, against our constitution, and in the unlikely event of finding fault with any aspect, offer constructive criticism.

A nation that is anchored on the rule of law must respect its institutions. The Judiciary, which is a critical arm of government, deserves respect even when they rule against us. Those aggrieved by the BBI judgment ought to use due process to pursue their cause. After all, the constitution is for everyone.

The BBI judgment has demonstrated that our constitution is self-executing and self-protecting. It’s a document born on the labour of patriots that tirelessly fought for it.

With their historic judgment, the five judges made a very loud endorsement for constitutionalism and the rule of law.  As citizens, it is our duty to remain engaged and vigilant against any attempts to reverse its gains.

The writer is the Narc Kenya Party Leader and former minister of Justice.