NAIROBI, Kenya, Jun 1 – In yet another bare-knuckle attack aimed at the judiciary, President Uhuru Kenyatta on Tuesday termed the growing independence of courts as a threat to the nation’s stability.
In his speech during the 58th Madaraka Day celebrations held in Kisumu, the Head of State said the judiciary had “stretched our democratic boundaries to the limit.”
“It has bent the will of the people; but it has not broken it,” President Kenyatta remarked while making references to two landmark rulings; the September 2017 Supreme Court ruling nullifying his election, and the May 13, 2021, judgment by the Constitutional Court declaring the Building Bridges Initiative (BBI) Constitution Amendment Bill unlawful.
As Head of State, the President said he will only listen to the voice of the masses that stand to benefit from envisaged changes to the country’s Constitution enacted in 2010.
“While I stand by the Rule of Law and I will always obey the decisions of the courts, I am also compelled by my position to heed the sovereign and supreme voice of the People of Kenya. That is why our National Conversation today must focus on the consequences of choice,” he told those who attended the national celebrations.
President Kenyatta said the courts ought to consider consequences of its decisions before rendering them.
“If the court had subjected its decision to stop BBI to a cost benefit analysis, in other words if it had considered the burden of choice, then, these are the questions the Judiciary would have asked: If we are in a constitutional moment, is a decision against BBI a decision in support of the status quo?”
Several commentetors condemned President Kenyatta’s remarks with some saying they bordered on sub judice considering the Head of State is among litigants who filed appeals against the judgement at the Court of Appeal.
“It is disgraceful to intimidate judges,” former Constitutional Affairs Minister, Martha Karua, said.
The referenced judgment by Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua derailed what in political parlance had been known as the BBI reggae despite its proponents having secured an endorsement by the two Houses of Parliament.
President Kenyatta and his newfound political ally, former Prime Minister Raila Odinga, unveiled the BBI as an antidote to nine key areas requiring reform identified in their 2018 truce following a divisive general election that saw the presidential poll nullified for the first time in history.
The two co-initiators of the BBI endorsed the proposed expansion of the national executive ostensibly to address what they termed as winner-takes-all politics which they blamed for election disputes in successive elections including the 2017 poll.
The Constitutional Court however found the law review process to have fallen short of key tenets guiding amendments under the Constitution (2010).
The five-judge bench said certain protected clauses of the constitution could not be amended without following a four-phased route involving “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
The court held that the President could not sponsor 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.”
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