To be absolutely clear, this is exactly what constitutionalism looks like

Oh Paul: I did not know there is a reverse Road to Damascus where Paul becomes Saul. I may never find this road but I violently shudder at its outcome as I did when I read your article in the Sunday Nation (‘This was not about law. It was about politics, says Paul Mwangi’, published on May 16, 2021).

Guided by this headline, I searched – vainly it ultimately turned out – for evidence that the 321-page ruling by the High Court bench chaired by Justice Joel Ngugi in the Building Bridges Initiative (BBI) case had been political and not legal. I found not a scintilla of it! Completely, utterly, totally none!

Instead, I found an article rich in suggestion and innuendo, rumour and conspiracy theory. It dawned on me that there had indeed been a “Saulic” conversion of the Paul Mwangi who authored the revelatory The Black Bar: Corruption and Political Intrigue Within Kenya’s Legal Fraternity.

‘Judicial activism’

Oh Paul, did you just parrot, “Judicial activism” as your sorry, lame and pedestrian excuse for getting called out for not being faithful to the law? Really! And you offer not even a tiny spec of evidence of this.

You do not even problematise the term “Judicial activism” and its origins in the writing of Arthur Schlesinger Jr in his article, ‘The Supreme Court: 1947’.

For, as one critic wrote, “Schlesinger’s original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad.”

Instead, you launch into it with the alacrity of a wounded leopard in a manner clearly crafted to denigrate and cast aspersion.

“Judicial activism” is a grave charge to, willy-nilly, level against judges who pro-vide 321 pages of reasoned judgment.

Your subsequent paragraphs after making this charge are inchoate, incoherent ramblings with erroneous conclusions on a matter that the High Court bench took meticulous care to explain. And much as one may disagree with their reasoning and conclusions, surely one cannot say that they did not rely on the law to arrive there!

Underwhelming response

And yes, I may not be a supporter of the BBI constitutional process but, in this case, you should have tendered your evidence as the High Court did. To hear one of your quiet supporters respond to a critique that your response had been underwhelming by stating that “One can only say too much in a thousand words or so” – while true – is still disingenuous. For, rather than uttering hot air and empty rhetoric, you should have used an example or two to illustrate what in the reasoning and conclusions of the High Court ruling was based on politics and not law.

To be clear, the Constitution is (and has always been) a legal and political document. To further be clear, the High Court has the mandate to interpret the Constitution. So when it does this and all I see is an article that sheds heat and no light, I wonder: between the BBI process and the High Court’s review of it, which is un-constitutional, illegitimate and illegal?

Obviously, this ruling may be overturned via the appellate route that is being explored by the Attorney-General. We shall wait to see what arguments and proof they offer as compelling reasons to overturn it. For now, I would urge you to demonstrate through cogent argument and logical thinking, where you have disagreed with the judges’ reasoning and the reasons your line or train of thought should occupy higher territory than the High Court’s. But no more ad hominem attacks on them to assuage the bruised egos of two brother-Principals who decided to provide legal counsel to their counsellors rather than seek it from them.

If there must be a constitutional referendum, then so be it. But let it be based on sound constitutional footing that honours the departure from the past egregious excesses of constitutional amendment that so butchered and cannibalised past constitutions so as to create the political Frankenstein monster that was the Executive prior to 2010 – and whose tentacles still assault us from the grave in which we thought we had it buried. Indeed, after a drunken stupor inevitably comes the grinding hangover.

Katiba 2010 launched a valiant fight-back through the High Court ruling on the BBI process. For once, we saw not just a Constitution but also constitutionalism at play.

If this is judicial activism, then Katiba 2010 is the mother of the judicial activist.

This article does not represent the views of any organisation to which the writer may be affiliated. [email protected]