NAIROBI, Kenya, May 15 – Top lawyers in the country continued to heap praises on the constitutional court on Saturday, terming Thursday’s ruling invalidating a constitutional review process under the Building Bridges Initiative (BBI) as an affirmation of Judiciary’s independence.
Senior Counsels Ahmednasir Abdullahi and Taib Ali Taib termed the ruling by a five-judge bench of Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua as solid, saying an appellate process would require the annulment of multiple decrees issued by the court.
“90 per cent of Kenyan lawyers are of the view that Thursday’s judgment of the five judge bench on BBI was a solid and sound judgment. About 85 per cent think an appeal to the Court of Appeal is a waste of time and PUBLIC FUNDS,” Abdullahi tweeted.
Taib in response said: “SC, through the BBI judgment, the Judiciary has staked out its claim to independence, in as profound and as dramatic a manner as is possible. Whatever one thinks of the judgment, the real cause for celebration is this fearless declaration of independence by the Judiciary.”
“Even in its seemingly feeble state … [The Constitution] 2010 will eventually wrestle even the mighty down no matter how long it takes,” constitutional lawyer Waikwa Wanyoike remarked.
Prof Makau Mutua tweeted a defended the bench from claims of being biased, dismissing assertions by a section of BBI promoters who termed the ruling as political while labeling the bench as ‘activist’.
“POLITICIANS and their acolytes must STOP all attacks on Justice (Prof) Joel Ngugi for the BBI ruling. He and his fellow justices (Odunga, Mwita, Matheka, Ngaah) are BRILLIANT. Presiding Judge Ngugi — a former student of mine @Harvard_Law — is the best jurist in Kenya. PERIOD,” he tweeted.
The Prof Ngugi-led bench made multiple decrees, key among them a finding upholding the basic structure doctrine under which certain clauses of the Constitution are deemed unamendable and that the electoral commission lacked the statutory quorum to verify signatures submitted by BBI promoters in favour of the amendment process.
In its ruling, the court declared the basic structure of the constitution could only be amended by invoking a four-phased process entailing, “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
The BBI constitutional review process was found to have fallen short of the Primary Constituent Power, the court holding that the President overreached his mandate in promoting constitutional changes under a popular initiative.
“A constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through a Popular Initiative under Article 257 of the Constitution,” the bench ruled.
A BBI steering committee gazetted in January 2020 was also declared an unconstitutional entity, the court holding that it lacked the legal capacity to initiate constitutional changes under Article 257 which sets out conditions precedent for an amendment through a popular initiative.
The court also issued a declaration invalidating “the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020” saying it was “done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power.”
The BBI Implementation Steering Committee which was set to appeal the verdict on Monday however vowed to clear pitfalls set by the constitutional court ruling to sustain the clamor for the review of the constitution spearheaded by President Uhuru Kenyata and former Prime Minister Raila Odinga.
“For sure we will appeal and somebody has to look at this to see through what is purely a political exercise. We shall prove that this was sheer politics. This is not law,” lawyer Paul Mwangi, a co-chairperson of a taskforce which midwifed the BBI process, told Citizen Television on Friday.