Public interest reality versus the BBI ruling

When parties go to court for litigation or even interpretation, they do so because of the belief that the justice system is the shield and defender of rights of everyone.

That belief is buttressed by the fact that public interest, evidence adduced in court and arguments by litigants are all considered and that ultimately the ruling will not overly run away from what is good for the public.

While a lot can be said about the Building Bridges Initiative (BBI),  the ruling by the High Court last week speaks loudly; not of the amendment bill but perceived vendetta. 

Whether perceived or real, the level of activism that is inherent in the ruling and the fact that it turned on President Uhuru Kenyatta and his role in the entire process, is unwarranted and a precipitous pathway to a fairly dark space in our democracy.  

To insist that BBI is a creation of President Uhuru is not only shocking, but the condescending attitude, out rightly speaks of or subliminally, suggest a calculated move and chanced opportunity for a few people to hit back; hit back at a President who listened to the cries of Kenyans when the post-election violence and tension was tearing this country apart.  

It is a slap on the face of Kenyans who believed in the path that the President and ODM leader Raila Odinga took to solve these problems through the first amendment.  

In fact, the four million signatures by Kenyans; the popular endorsement by 43 county assemblies, 235 MPs and 52 senators and the attendant aspirations of many Kenyans have been frivolously thwarted by this shocking ‘revelation’ that the BBI is a creation of the President.

 Ironically, in the same ruling, you have this conspicuous intra and extra ruling contradictions that even a first year law student cannot make.

The rush to aim a dig at the President was such that the intra ruling contradiction is so conspicuous, so personal, that you realise the uncoordinated rush failed to attend to the fact that some things are mutually exclusive.

On the one hand, the judges declare that a sitting President can be sued, both in his individual and official capacity. This presupposes that a President can act as a private citizen.

Then on the same breath, they argue that the President cannot initiate a proposal to change the Constitution and even label him a constitutional criminal!

Never mind that Articles 255, 256 and 257 of the Constitution have not explicitly mentioned who can sponsor a popular initiative to change the law. Inter ruling contradiction can be seen in the way the ruling ignores and contradicts Judge John  Mativo’s earlier ruling that made it clear that the President acted within the law and legally constituted the BBI taskforce. 

It may be worth the while to revisit judge Mativo’s pronouncement on Article 132 of the Constitution and the BBI taskforce.

Nevertheless, even as we ventilate, there are public interest realities that we must be alive to. 

Up to early 2018, there were Kenyans demonstrating along the streets; getting shot and maimed by the security forced as others were losing business in the near anarchy situation that as a country we almost sunk to. 

Kenyans from all walks of life called on the President and Raila to get them out of that dark space.

Interestingly some of the very people behind the petitions on BBI were busy fueling anarchical thoughts and sowing seeds of secession. 

Look at it this way, the many Kenyans who directly or indirectly through their MPs and senators appended their signatures to the bill are seeing their aspirations of a better Kenya, vanquished by five judges who seem to have closed their eyes to public interest.

In fact, silently this ruling suggest that no one can initiate any amendment to the Constitution without express permission from the courts on the legality of the process. 

That failure to consult courts at every stage of the process can render the efforts by any would be sponsors of a popular initiative null and void.

This is akin to saying that the sovereign power of the people can only be sanctioned by a court of law at best and at worst this arm of the government has usurped our sovereign power. — hesbonhansen@gmail.com