Sekou Owino: Key lessons and observations on BBI judgment

The Court of Appeal delivered its judgment on the Constitution of Kenya Amendment Bill, 2020 (better known as the BBI Bill) on Friday. Though the decision was not unanimous, the holding by the majority of five judges means the Building Bridges Initiative is stalled, unless any party decides to go the Supreme Court on an appeal.

The bill sought to make changes to the Constitution. The Court of Appeal agreed with the High Court before it that the process was largely improper. 

The appeal was a consolidation of several suits, which challenged the BBI bills as having been unconstitutional. The main issue was on whether the process by which the proposed amendments were driven was unconstitutional. The reasons for this was among others parts of the Constitution it sought to amend.

A number of issues deserve noting from this judgment. The first is that the Court of Appeal has given the High Court a thumping compliment in the judgment that was challenged on appeal. Even though the Appellate Court judges did not unanimously uphold the High Court findings on all the issues, the High Court judgment has been largely upheld and, I would add, on the core issues on which the appeal turned.

The Court of Appeal has confirmed what many lawyers knew: that the High Court judgment may have been unpalatable to politicians but was largely solid in law.

The first issue worthy of note is what the President of the Court said at the beginning of the reading of the judgments. 

“That the Constitution is transformative is not in dispute. But its implementation is troubled,” Justice Daniel Musinga said. 

The rest of the judgment reflected this refrain whichever way the judges decided the issues. 

Though the Constitution has schedules for its implementation, the mere performance of these was not enough to ensure implementation. It does appear that Kenya never went on the full drive to implement the Constitution. The steam of ensuring its implementation dried out.

Secondly, the fact that each of the seven judges read their judgments separately is of some novelty in our courts and a refreshing one. 

The overall effect of this is that there were some interesting permutations where the different judges agreed with each other on some of the issues and differed on others. This would create what many non-lawyers may find as a confounding and undecipherable. However, all strands of the legal profession – scholars, students, practitioners or and legal theory specialists – will find this intriguing.

The scrutiny of individual judgments will make juicy intellectual bones for scholars and students of law to chew. 

Starting from the delightfully sounding grammar and phraseology, the judgments were sonorous to the ear. 

The other effect of the judgments will lead those who are keen on deciphering the judicial philosophies of individual judges to have a basis of analysis. This will be beneficial as an academic exercise and provide sufficient toehold for the development of the law in future cases. The law will be richer for this.

A third lesson is that Kenyans of all occupations need to wake up to the fact that there is a fundamental role for the citizen in constitutional implementation at all levels, not least in the endeavours for its amendment. 

The clarity with which this judgment expresses the national value of public participation in management of affairs and governance sends the message that the Constitution is not merely a collection of pieces of paper and its dictates not mere words. 

In addition, it is the people’s charter, which they should own, protect from mutilation and utilise its institutions and devices to their full benefit.

Allied to the role of the citizen is the fact that emerged that the rule of law is challenged and implementation of the Constitution is not where it should be, especially where the other arms of government are concerned. 

The judges cited numerous examples to failure to comply with the Constitution that clog the rule of law. 

Examples are failure by the Independent Electoral and Boundaries Commission to petition for filling of vacant positions and undertaking of voter education and registration. 

On the part of Parliament, the judges cited the failure to pass legislation that would affect the conduct of referendums. Put differently, the other arms of government and allied institutions have been operated at a level less than that expected of them under the constitutional architecture of Kenya.

Fourthly, the judgment affirmed the principle that constitutional processes are not mere salutary gestures that can be sidestepped at without consequence. 

This was particularly resonant in the holding that the processes by which the bill was intended to be pushed through was an unconstitutional short cut.

The core of the decision was the holding that the Constitution has an implicit basic structures, which are somewhat hallowed. A second and important holding is the decision that the president may be sued in his personal capacity for a breach of the law. 

The message was sent that no individual, office, action and authority is above law. 

The last issue is that the Judiciary remains the spearhead of the implementation of the Constitution. 

Put differently, this is the arm of government that seems to appreciate that the Constitution is transformative and strives to ensure that the momentum of that transformation is not lost.

A final holding was that the Judiciary keeps reminding the country through shocks occasionally that the ordinary citizen is meant to be at the heart of the constitutional transformation envisaged in 2010. 

This is a calling that the citizenry need to rise up to. This was judgment for the people. The Judiciary has done its part. 

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