AG should carefully launch appeal to save BBI agenda
Edris Omondi
The disposition by the High Court in dismissing the Building Bridges Initiatives (BBI) in totality has not only exposed our judges’ deep feuds with the Executive but in the process their interpretation of law has the potential of injuring the persona of the voter if not arrested on time.
The judges failed to interrogate the constitutional amendment with a view to safeguard Kenyans against perennial electoral violence which BBI attempts to cure.
Lord Alfred Denning’s would have cited their limitation as having compromised our justice system and their action as a rule of public policy which could be justified through convenience.
The question is whether the ruling was made out of convenience other than progressive realisation of our common aspirations as Kenyans being both protection of our primary and secondary rights.
The Kenyan story in deciphering electoral violence has been a history of hope brokered by prominent and eminent personalities like the late Kofi Annan and Benjamin Mkapa, lest we forget.
In fact, the judges through their obiter dicta and in passing recognised the Kenya National Dialogue and Reconciliation Team in 2008, identified the need to have constitutional reform as a panacea to electoral conflicts and as part of what was then referred to as Agenda Four.
The Constitution is a living document with its heart beat felt from across the country, protecting every single Kenyan in our society.
The judges failed in realising this reality even as they attempted to exegesis the rule of basic structure as the zenith of the ruling.
The Attorney General should, therefore, embrace the doctrine of basic structure as a necessary constitutional reality but fault the determination by the judges.
In fact, the constitution is a social document. It interprets the behavioural character of a society.
All social documents are based on social philosophy and every social philosophy like every religion has two features, namely basic and circumstantial.
In my understanding, anything basic is a constant and what is circumstantial is a variable as mathematicians would say.
The same logic is infused in the doctrine of basic structure with the knowledge there are gains we have made over the years that fundamentally need to be protected in our constitutions.
The bench failed to contextually apply this Indian doctrine in the ruling as much as they embraced it.
The doctrine is anchored by the following key principles which ideally should have been the key enablers in coining the determination.
First, the principle of Supremacy of the Constitution. The fundamental question is whether the proposed amendment through the BBI compromised Article Two of the Constitution.
Second, the sovereignty and the unity of our country. Whereas Article Two captures both the Supremacy and the Sovereignty of the Constitution, Article 131(c ) requires the president to promote and enhance the unity of the nation.
In the latter, the president is expected to hold the country together. The question then is did the president ere in attempting to hold the country together through the BBI?
At what point does the president cease to become a Kenyan to warrant the conclusion that he failed the test of integrity under Article 73?
This interpretation was quite dishonest and more so having a ruling indicting the president. The president was never on trial.
Thirdly, the bench should have interrogated the principle of separation of powers with ease considering the proposals of having sitting MPs as part of the Executive. Montesquieu would have had a milk shake on this.
Lastly, an attack of the principle of freedom that encumbrances our bill of rights is an attack to all Kenyans. The question is did the BBI amendments affect this primary principles or not?
I am still in shock as a result of this ruling, begging the question; who will save Kenya in the absence of progressive judicial interpretation of law? — The writer is County Attorney, Kisumu County Government
