On May 13, a BBI bombshell was delivered by a five-judge High Court bench in Nairobi.
The bench led by Justice Joel Ngugi ruled the BBI 'baby' of President Uhuru Kenyatta and ODM chief Raila Odinga was unconstitutional, null and void.
The government, and perhaps Raila's, are trying to resuscitate a dead matter in the Court of Appeal. Again, they defy the Constitution by appointing a legal team of 16 men, not one woman.
The duo did not see it coming or perhaps their arrogance led them to make bad constitutional, policy, legal, institutional, administrative, social, economic and cultural decisions.
Perhaps, they had forgotten the Constitution has self-protective and countermeasures if they lack what they swore: To obey, preserve, protect and defend this Constitution.
On June 3, Uhuru went ahead and appointed 34 of the initially 41 judges to various courts, defying the Constitution yet again! The die is cast. The swearing-in on June 4, 2021, was presided over not by the President of the Judiciary – the Chief Justice – but ironically by Uhuru himself.
In a nutshell, Uhuru has lost the legal, legitimate, moral and political authority to govern Kenya and, therefore, his impeachment is only natural.
REMEMBER THE PROMULGATION
It’s the early morning of Friday, August 27, 2010. I have parked at the Serena Hotel. As I walk towards Uhuru Park, my heart is beating. Excitement and achievement are in the air. My eyes are captured by two young men, half-naked and painted in the colours of the Kenyan flag, dancing their hearts and bodies out, reminiscent of December 12, 1963. On their chests, one has painted Katiba (Constitution) and the other has painted Mpya (New).
I gaze for a moment at the mammoth and excited crowd. I estimate more than one million. You could tell Kenya was reborn. At least I thought and believed it so. It has been a long journey, more than 20 years.
As I take my seat on the dais, I'm reminded of a commentary I had written two weeks before, on August 13, 2010 —End of an Error: Beginning of an Era. You can guess at the content.
It is a long trilogy of the Kenyan nation and its journey of lacking constitutionalism since before Independence to the day Kenyans overwhelmingly voted for the Constitution of Kenya (2010), on August 4, 2010.
VIGILIANCE
This commentary painted a bright future, but warned Kenyans not to let their guard down. Towards the end of these memoirs, and quoting Former US President Andrew Jackson's speech of March 4, 1837, I stated, “You must remember, my fellow citizens, that eternal vigilance by the people is the price of liberty, and you must pay the price if you wish to secure the blessing: it behooves you to be watchful.” These words stand vindicated to date.
So, I take my seat at the front row of the dais, fewer than 20 metres from former President Mwai Kibaki, who is as excited as everyone in Uhuru Park. So the ceremony begins. But not without dance and songs in the Kenyan and African sense. There are many entertainers, individuals, choirs or just performing groups.
We are paying little attention, since we are discussing other matters. Of particular attention to this author, since he is working with the Kenya Human Rights Commission, is that former Sudanese President Omar al-Bashir is seated on the same dais. He was a fugitive from international law and being sought, as a warrant of arrest had been issued the same year. Is this the forum to arrest Bashir and hand him over to the International Criminal Court?
Short Message Services on most activists’ phones are very active. As a result, we agreed to organise a demonstration. Since the Constitution we are about to promulgate, in Article 37, provides, "Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”
With this in mind, we endorse the demonstration to test the Constitution and the government in power. We fail. Many of our colleagues are arrested in Nairobi and thrown into cells. We failed on Day One to implement what we are about to promulgate, yet it was endorsed by 67 per cent against 33 per cent of voting Kenyans.
NEW BEGINNING?
Back to the ceremony. Entertainment galore. Cheers galore. Enthusiasm galore. My attention is attracted to a young woman dressed in a white African design and headband, and I can see she is barefoot. She steps out of the entertainers’ seats. She is confident. She is dark like a typical African. So I wonder, what is she going to do to entertain these guests and Kenyans in general?
Some beats in the background. I have never heard such beats before. After a few moments, she belts out, “Taunet ne leel, kabwate ne leel; Ogeero, Ayai che leelach; Ame gus kong… tuguk chebo tai; Ame ngo memo, eng tuguk che kigo sirto; Awale rireeguk, koyeech boiboiyet…”
I do not know what she just said or in what language and without thinking I rise up. Many on the dais do as well, VIPs included. One is dancing like her: First Lady Lucy Kibaki! All of us who have risen are on cue. Most of the huge crowd on the hill are on their feet.
Unless they are Kalenjin, most do not know what she is saying, other than her reference to Jehovah. But it’s a timely song. Translated, the young lady, Emmy Kosgey, was singing, “It is a new dawn, new direction; no turning back, no more worries; I am doing new things… do not let your heart worry; don’t be discouraged by your past; I will turn your sorrows into joy, behold I am doing new things…”
The words came back to me when I was listening keenly to the five-judge bench. Honestly, I shed a tear. After 16 years of my youthful life between 1994 and 2010, trying to be those gallant Kenyans Kibaki mentioned in his speech, the proponents and promoters of decapitating the Constitution through the BBI had forgotten what it took to be there in Uhuru Park for some of us.
I remembered the times we went through horror and terror to be there. The discrimination and intimidation meted out on democracy and human rights activists were bad times. These are documented in many memoirs written by many of us. Kenyans should read more into issues, before just saying yes or no, either to the Constitution or the BBI. As for the latter, many had not read but were keen on endorsing the Constitution of Kenya (Amendment) Bill, 2020 if and when the referendum was held. What a pity!
OATH OF OFFICE
Once the entertainment ended, and the official promulgation ceremony done, the top leadership of Kibaki and Raila took the Oath of Office. Most with a Bible in hand, swore, affirmed or pledged to “obey, preserve, protect and defend this Constitution…” The rest is history, or was it? These are not empty words.
In his speech, Kibaki was unequivocal. He said, “…this new Constitution is an embodiment of our best hopes, aspirations, ideals and values…some of the changes will be immediate and we must be ready to support them. Other changes will take time and we must remain resilient and focused as we work towards their fulfilment.
Raila said: “…today we have closed a long chapter in our history. We have put repression, exclusion, dictatorship and heroic struggle behind us once and for all. We have opened a clean new page in our book. On that page we begin writing a story of an equal and just society…”
So, if today Raila could be asked, what has changed when he belts out that “no one can stop reggae” and is adverse to anyone opposed to the BBI if “…we put repression, exclusion, dictatorship…behind us once and for all?"
BBI: A DEAD HORSE
The British have a saying: do not flog a dead horse. On June 1, in his Madaraka (Self-rule) Day speech, Uhuru seems to be flogging a dead horse! Characteristic of him, President Uhuru seems clueless. His bashing of the Judiciary on a National Day is misplaced. The person who wrote that speech should be fired!
Why would one want to subject the President to such ridicule? He quotes figures, which are not just misleading and clueless but also outright wrong or incorrect. That the Uhuru-Ruto, and perhaps Raila now, government has outperformed the colonial administration, Moi and Kibaki in nearly all areas and has grown the economy? What hogwash!
The only areas where Uhuru's has beaten all previous governments, and take it from this qualified author, are the following: a) out-performed in the disrespect for the Constitution, rule of law and court orders; b) increased the debt burden and outright overtaxation; c) tolerated theft of public resources; d) concentrated capital infrastructure despite rampaging poverty and e) wastage of public resources through many avenues. Period!
The BBI is a dead horse, just like the so-called Big-Four Agenda! The BBI was conceived poorly and rolled out equally poorly.
In their first report, of November 2019, the BBI task force gave Kenyans a very raw, poor and unedited report. This author read the report in disbelief, knowing who the task force members were and what they are qualified to do and be.
The second report by the task force on October 2020, now called a Technical Committee of the same members, was an improvement. In it are a series of policy, legal, institutional and administrative measures that the Uhuru-Ruto-Raila government could do, without necessarily seeking to amend the Constitution of Kenya.
The baffling matter was why the Technical Committee went ahead to draft the Constitution of Kenya (Amendment) Bill, 2020 and with it, a series of schedules to not only create new constituencies, but also set boundaries and deadlines!
What an episode? That was what the BBI process and content had become. A programme to be watched and listened to, until the matter came before the High Court.
HIGH COURT IMPLICATIONS
The High Court, in its unanimous decision by the five judges, never minced words. The consolidated petition, researched by four serious Kenyans with their lawyers, guided by patriotism and principles of governance in Article 10 of the Constitution, made it known to the High Court that the BBI promises are what many may term "a fool's paradise’.
To Illustrate, Articles 203 and 204 of the Constitution set the ‘floor’ of funding counties at not less than 15 per cent. No one, and absolutely no one, has ever stopped the government from giving more by increasing this percentage to 35 per cent! So, why would the Uhuru-Ruto-Raila government want to change the Constitution?
Another example would be the question of not more than two-thirds of either gender in elective and-or appointive public offices. Nothing stops Uhuru from nominating and Parliament approving the same principle in all seats over which they have control, such as the Executive Cabinet or the parliamentary departmental committees. Changing the Constitution is not needed. So why fool Kenyans?
Worse still, the governors in their sycophancy joined in the tune. What stop governors from demanding more money from the national government of President Kenyatta? What stops them from nominating and appointing more women in all the positions in their county governments? Come on! So, let us wrap up this BBI nonsense and call a spade, a spade!
FINAL WORD
The High Court rendered a sealed decision. The Court of Appeal has begun in earnest to see whether that decision could be set aside, a tall order. How do seven judges set aside over 15 very valid declarations about the BBI process and content? I shudder at his ‘favourite’ judges on that list by the Judicial Service Commission, it does not matter. Judges cannot replace facts of the High Court declarations.
Of course, some of those declarations were lame. For instance, the IEBC cannot conduct business led by three commissioners, yet Article 250 of the Constitution is superior to any other law or regulations governing the IEBC. On the latter, the Court of Appeal has already pronounced itself and the IEBC will go ahead and conduct business, including allowing Kiambaa constituents to elect their MP next month.
The final word is simple: the rule of law is paramount. Unlike the understanding by President Kenyatta, lessons should and must be learnt. The Constitution is SUPREME and the Kenyan people are SOVEREIGN. The Madaraka Day speech by President Kenyatta that Kenyans are supreme is misconstrued and incorrect. They are not. Kenyans donate sovereign power, which they may exercise directly or indirectly in accordance with Article 1 of the Constitution.
President Kenyatta, with the proponents and opponents of the BBI, please wake up and smell the coffee. The referendum is not happening.
The Uhuru-Raila dalliance with BBI has come to an end. Neither should Ruto feel like a winner. He is not; he is part of the government. A government that promised so much but delivered nothing. He should also leave office.
Kenyans, wake up. If Parliament cannot impeach Uhuru-Ruto-Raila out of power, exercise your SOVEREIGN power, and DIRECTLY at that.
(Edited by V. Graham)
