Judge Kiage affirms High court ruling on basic structure says Uhuru was BBI initiator

"The Law is always speaking, the constitution called me to be a warrior in the rule of law," he said.

In Summary

•"The Law is always speaking, the constitution called me to be a warrior in the rule of law," he said.

•The judge also said he wondered if some parties in the case understood the issue of basic structure.

Appeals court Judge Justice Patrick Kiage during the ruling of the BBI at the appeals court on August.20th.2021/EZEKIEL AMING'A
Appeals court Judge Justice Patrick Kiage during the ruling of the BBI at the appeals court on August.20th.2021/EZEKIEL AMING'A

Justice Patrick Kiage has affirmed the high court decision on basic structure.

The basic structure doctrine is a common legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature.

Reading his judgement on Friday, Kiage said he will not accept criticism to be levelled against the high court judges on their interpretation of the constitution.

He says those who swear by the Constitution must be ready to live with its requirements or else give such offices a wide berth.

"The Law is always speaking, the constitution called me to be a warrior in the rule of law," he said.

The judge also said he wondered if some parties in the case understood the issue of basic structure.

"Text sometimes apply differently to different readers. Some of the arguments had the air of the surreal around them, and this makes me wonder whether we have "facts" and "alternative facts." he said .

Justice Kiage says purposeful, value laden interpretation of the Constitution is what is required.

"The constitution calls on judges to be warriors in the defence of human rights and the rule of law, avers judges are part of a global community and are enjoined to borrow and apply progressive ideas and practices from other jurisdictions in their work," the judge said.

"The spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion."

He said the people were not mere observers or peripheral players in the making of the 2010 Constitution.

"They were not mere instrumentalities for the formal adoption of a document conceived by the political power elites of the day," he said.

Judge Kiage said the spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion.

"The constitution calls on judges to be warriors in the defence of human rights and the rule of law, avers judges are part of a global community and are enjoined to borrow and apply progressive ideas and practices from other jurisdictions in their work," he said.

The judge said the people of Kenya were ready to prevent the constitution from mutilation adding that the power is original and inherent in the sovereign of the people.

On popular initiative, the judge says popular initiative must not be viewed as a presidential initiative otherwise it will be viewed as a state initiave.

The judge said in this case the president was the initiator of the BBI.

"BBI was a government initiative. It was gazetted by the government, the committee appointed by the president and the report was even received in a state lodge," he said.

Justice Kiage has noted that there was no public participation in the BBI process.

He noted that MCA's rushed to pass BBI after being given car grants.

He wondered how SRC made funds available at short notice to give car grants to the MCAS.

"There was mad rush by MCA's to demonstrate party loyalty. The people didn't matter, they received car grants & acted as if parliament was a state of emergency, " he said.

On presidential immunity, Judge Kiage said the president does not have absolute immunity.

Edited by N.Agutu