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Will Executive comply with High Court ruling on BBI?

Attempts to amend the Constitution of Kenya through Building Bridges Initiative have been dealt with a major blow. This is after the High Court ruled yesterday the entire process was unconstitutional. 

President Uhuru signs BBI launch. The High Court ruled against Constitutional Amendment 2020. Photo/FILE


§  The Executive has a history of disobeying court orders and cutting budget of the Judiciary

§  The orders ignored include President Uhuru’s failure to appoint 41 judges and deportation of Miguna Miguna.

§  The biggest question right now in the corridors of justice is how the Executive will react the the court judgment that stopped BBI “reggae”

Various petitioners including David Ndii, Jerorich Sei among others had challenged the BBI in court to seek interpretation. The ruling in itself is a landmark, sui generis and a show of judicial independence and separation of powers.

The court in its ruling ruled that the President or any State organ cannot initiate a process to amend the Constitution. The President can only do so through the Attorney General who is the government legal advisor.

The High Court which has a constitutional jurisdiction of interpreting the Constitution underscored that constitutional amendment can only be done through parliamentary or popular initiative espoused under Article 256 & 257.

Calls to amend the Constitution were birthed after the handshake involving President Uhuru Kenyatta and Opposition leader Raila Odinga. It was also found that by Mr Kenyatta initiating the process, he contravened Chapter Six on Leadership and Integrity and failed to uphold the Constitution he swore to protect and defend.

The five-judge bench also ruled that the BBI committee had no power to allocate the 70 constituencies to different counties. This responsibility is vested by IEBC which is an independent constitutional commission to delimit constituencies and wards under Article 88.

Currently, IEBC is not properly constituted because it has only three commissioners. For it to carry out its responsibilities effectively and raise quorum, it should have five commissioners. The BBI promoters failed to avail copies of the document to the general public nor has the document been translated to Swahili the national language which majority of Kenyans can read and understand. It should also be noted that no referendum can be held without IEBC conducting voter registration and civic education. This did not happen.

The big question Kenyans are asking themselves is, Will executive comply with the high court judgment? Your guess is as good as mine. The government has an option of appealing the decision to Court of Appeal through Solicitor General or Attorney General. But anyone who has been living in Kenya knows how rarely government complies with court judgments and rulings. The only court judgment that was obeyed was when the Supreme Court annulled presidential election. Under Article 140, the Constitution states that the decision of Supreme Court shall be final. Supreme Court being the apex court, its decision or ruling cannot be challenged in any other court of Kenya. After the ruling, President threatened to revisit the judiciary. This led to Judiciary budget cuts and a frosty relationship involving the President and the then Chief Justice David Maraga.

Disobeying court orders

Some of the judgments and rulings the government has disregarded include; failure by President Uhuru Muigai Kenyatta to appoint 41 judges. This has led to shortage of judges and backlog of cases. Eviction and demolition of houses in Kariombangi and other parts of Nairobi, Maraga’s advice to President to dissolve parliament for not enacting two-thirds gender rule, Establishment of Nairobi Metropolitan Service and the greatest of them all is the illegal deportation of prominent lawyer Dr Miguna Miguna. In the offing is the High Court ruling declaring BBI unconstitutional.

The Judiciary has occasionally shown and demonstrated its independence and acted as people’s custodian towards preservation of justice, safeguarding the rule of law and the Constitution.

Judiciary is the only arm of government which is independent and observes the doctrine of separation of powers. Despite the National Assembly being the people’s representative, it has failed to perform this role and make independent decisions that reflects the wishes of Musangi, it has sold the common mwanchi to the highest bidder. As my friend and fellow political analyst Victor Ochieng alluded, when the names of heroes and heroines of my motherland shall be written, let the names of the five high court judge bench be written in bold.

KITONGA MUSYOKA writes on Political and Legal topics.

Edited by MUSYOKA NGUI, Editor-in-Chief, Mwingi Times


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