On May 17, 2021, Kenyans of all walks of life were taken aback when the High Court made a decision that the Building Bridges Initiative was unconstitutional and the process of amending the Constitution was null and void.
For many, it appeared as if the five judges of the High Court were living in a different country and had not experienced the benefits of the BBI. They appeared to be blind to the fact that BBI had not only reset the country’s politics but had created a conducive environment for governance.
It was therefore not surprising that the decision was appealed and the respective proponents of the initiative called upon the most senior lawyers to deal with the appeal.
Last week, the seven-judge bench on the BBI appeal heard from the various lawyers for four days. We are now waiting to hear what they will decide.
It was clear from hearing the senior lawyers that the High Court decision may have been fundamentally flawed in its reasoning. The lawyers deconstructed the decision, making it clear that the courts must look at the bigger picture.
I have written here before that BBI has a clear objective that is of benefit to this country and its future. Its key proponents – President Uhuru Kenyatta and former Prime Minister Raila Odinga – have also been clear on what their 2018 handshake is supposed to achieve.
It is therefore clear that the BBI process is larger than any single individual and is set to benefit the country by ensuring that it cements the ideals of democracy and enduring peace.
It is not in my place, or any other person’s, to advise or to appear to be giving instructions to the honourable justices of the Court of Appeal. However, it is important to state that courts do not work in a vacuum.
While the judges are guided by the Constitution and the corresponding laws, they must also be alive to the realities of the nation. The reality is that we cannot head into another election with the same loopholes that we had two elections ago.
The BBI process helped us identify what the gaps were in our laws and systems, and Kenyans in their millions endorsed a process to amend this. Kenyans, who are the sole custodians of sovereign power of this country, decided that it was time to make some amendments to the Constitution.
It would therefore be a subversion of the will of the people for the Court of Appeal to uphold the decision of the High Court judges and deny Kenyans their rightful place to decide on this important matter.
While we await the judges to make their decision on the law, including the Constitution, it is also our hope that the voice of Kenyans will not be drowned in the legal jargon.
Kenyans must be the ultimate decision-makers on all matters that pertain to the changing of the Constitution and especially how they wish to be governed.
In the same way that Kenyans decided on the Constitution in August 2010, they must be allowed to do the same now. It has been more than 10 years, and Kenyans can see what is working and what is not, hence, the proposals they sent to the BBI task force.
We should not, therefore, get into another shocker where seven judges decide for Kenyans on whether the Constitution should be amended. BBI indeed arose from the handshake between Uhuru and Raila but they did so on behalf of the millions of Kenyans who support them.
