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Raphael Tuju/CFM -FILE

BBI

Tuju faces backlash over security privilege remark on judges

Tuju, while speaking on NTV Tonight, claimed those celebrating the annulment of the Building Bridges Initiative (BBI) constitutional amendment process by the Constitutional Court on May 13 were, “dancing of the graves of victims of post-election violence.”

NAIROBI, Kenya, May 18 – Jubilee Party Secretary General Raphael Tuju faced backlash on Monday night after suggesting security services offered to judges by the State were a privilege which judicial officers should take into account while issuing decrees.

Tuju, while speaking on NTV Tonight, claimed those celebrating the annulment of the Building Bridges Initiative (BBI) constitutional amendment process by the Constitutional Court on May 13 were, “dancing of the graves of victims of post-election violence.”

“Judges should learn the word ‘interdependence’ because as soon as they finish a ruling, they need policemen to escort them home,” the Secretary General of the governing party said in remarks that angered proponents of judicial independence, a key tenet of the Constitution (2010).

In a rejoinder, Law Society of Kenya (LSK) President Nelson Havi dismissed Tuju’s assertions as ridiculous saying judges have a right to security.

“Raphael Tuju, hear and get me loud and clear. Your buffoonery seems to know no limit. Judges volunteer to serve in an Arm of Government. Their security is not a privilege but a right. This is not Uganda in the 70s. Cross that line again and you will live to regret it,” Havi, who led the petitioners’ legal team against BBI, fired back.

His remarks were echoed by Esther Ang’awa, an LSK Council Member, who said the BBI process did not resolve past grievances including manipulation of electoral processes.

“Did BBI open the IEBC servers? Did BBI address the transmission of results debacle?” she posed.

“Raphael Tuju is currently on NTV saying those celebrating the High Court ruling on BBI are dancing on the graves of those who died during post election violence. That marks the end of my viewing tonight,” Gabriel Oguda, a columnist on a local daily, said.

Tuju’s remarks came on a day the State filed a notice of appeal against the judgment issued by a five-judge Constitutional Court bench which in addition to finding the BBI process unconstitutional, ruled that President Uhuru Kenyatta had violated Chapter 6 of the Constitution.

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“Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution,” the bench declared.

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.

In a unanimous judgment, Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua also upheld the basic structure doctrine rendering certain clauses of the Constitution unamendable, a finding fiercely criticized by Tuju.

The court noted that 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 bench also held that the electoral agency, IEBC, lacked the statutory quorum to verify signatures submitted by BBI promoters in favour of the amendment process.

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.

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