High Court constitutional bench overreached in its BBI ruling

In countries with advanced legal systems such as the United States, their criminal prosecution rules allow for a generous joinder of charges.

This means that prosecutors can bring many charges against a single defendant at once.

The practice of bringing dozens of often redundant charges against a defendant is known as charge stacking.

This charge stacking gives prosecutors enormous power to coerce defendants into pleading guilty rather than risk being tried and found guilty of many if not all those stacked charges.

The Constitutional and Human Rights Division of the High Court has now formally imported and adopted this charge stacking concept, except in a judicial context.

Specifically, in rendering the High Court’s decision, Judge Joel Ngugi read 22 conclusions and findings of the court followed by 23 orders he read in the form of declarations.

To anyone watching or listening as the judge read these conclusions and declarations, one could not but conclude BBI is dead as a doornail.

Indeed, those opposed to BBI for whatever reason were jubilant and many of them downright gleeful that the High Court has delivered a fatal blow from which BBI cannot recover.

However, an examination of the Bench’s ruling readily reveals the ominous declarations are not that at all as the ruling is predicated on faulty premises and in some cases contrary to the very Constitution the justices erroneously concluded has been violated.

Stripped of the faulty premises, wrong conclusions and unsupported or contradictory findings of fact, the BBI ruling yields not the 22 conclusions and findings of fact but at best perhaps one or two and certainly not more than a handful of conclusions and findings of fact from which not more than the same number of orders can be had, none of which can derail the BBI referendum process.

In other words, the judges have given us the equivalent of charge stacking in that they have given us a tower of conclusions and findings of fact and orders that crumbles once subject to scrutiny and the cornerstone is yanked from underneath the tower.

There is no doubt the BBI ruling will be appealed and the next court to have the first stab at it will be the Court of Appeals where the ruling, according to many observers, may find friendly reception, which means—as it should be in cases such as this—it is the Lady Justice Martha Koome-led Supreme Court which will decide the fate of BBI, not the High Court nor the Court of Appeals.

The High Court panel ruling is not likely to fare well at the Supreme Court and will likely be overturned substantially, if not altogether quashed under injusticiability, political question and separation of powers doctrines.

These doctrines, singly or combined allow the courts to stay clear of issues that are best resolved in the political arena, rather than by the courts.

Given the stage where the BBI process has reached and given both the counties and the national assembly have overwhelmingly voted to have BBI take on the final hurdle of a vote in a referendum, there could not be a better case for the courts to stay clear than this one under any of the above doctrines.

However, even if the Supreme Court were to take on the case head-on substantively, there are several reasons to believe the outcome will be the same, namely, a ruling by the Court to allow the BBI process to conclude at a referendum as currently planned.

First, the High Court panel relied on intellectual constitutionalism that is not suitable for Kenya to reach the conclusion that there are parts of the constitution that cannot be amended.

To be sure, there is nothing wrong for lawyers to argue or judges to consider and even adopt innovative foreign legal doctrines as we develop our own jurisprudence but doing so should not lead to absurd outcomes.

Adopting the doctrine that some parts of our constitution cannot be amended not only contradicts what the constitution itself provides, but it would also be absurd if allowed to become the law.

Not only does the constitution provide in Articles 255, 256 and 257 how to amend it, but the Supreme Court itself has also recognized and reaffirmed the power of the People to amend the constitution so for the High Court to conclude otherwise is contrary to the principle of stare decisis, which provides that courts are bound by previous rulings on the same issue and that lower courts cannot contradict what higher courts have held to be the law.

As respondents rightly argued, the Constitution is a living document that needs to respond to new needs and changing societal demand.

But that does not necessarily mean that it should be amended on a whim; rather, the drafters of the 2010 Constitution recognized the need and deliberately made it extremely difficult to have several articles in the constitution difficult but not impossible to amend.

That already being addressed, the High Court panel had no reason to even touch the issue.

Second, the High Court panel’s ruling that a president can be sued in a civil proceeding notwithstanding the clear prohibition against exactly doing that in Article 143(2) is not something that will survive on appeal.

The argument that Article 143(2) does not apply because the president was acting outside his powers as president fails and cannot stand because that finding itself is predicated on an erroneous interpretation of the Constitution.

Put another way, the only relevant question to ask in determining whether Article 143(2) prohibits a lawsuit against Uhuru Kenyatta as an individual, is whether when he constituted the BBI Taskforce and what followed, he was exercising his presidential powers and the answer, of course, would be, Yes and that being the case, the Petitioners had no standing to bring this case against Uhuru.

Third, because the Petitioners had no standing to sue Uhuru in his personal capacity as they did, all pronouncements and declarations about Uhuru are without legal or factual basis to withstand reversal on appeal.

Indeed, if there is one eye-opener as to where the High Court panel went off the rails, it is when they declared that Uhuru has committed impeachable offences for which, if allowed to stand, the National Assembly must institute impeachment proceedings against Uhuru—but never mind that the National Assembly itself, according to the High Court, is illegally functioning because the president was ordered by the former Chief Justice to disband it.

We can all agree that is an absurdity that cannot be allowed to stand; the president either acted constitutionally in constituting the BBI Taskforce which led to the popular initiative to amend the constitution, or he did not.

And if he did, then sooner than later the BBI process must be allowed to proceed once the appellate court of Supreme Court pronounces itself on this development.

Last, but not least, the High Court panel declaration that IEBC is improperly constituted is equally flawed and would lead to absurdities if allowed to stand.

The quorum for IEBC to conduct its business may be five, but the Constitution provides that IEBC is to be comprised of at least three but not more than nine members.

There are currently three IEBC members and that suffices for its actions to pass constitutional muster.

Again, one can go through each one of the declarations the High Court panel made, save for a handful or so, and each one falters upon scrutiny as they are predicated on faulty, flawed, or contradictory premises.

The High Court panel’s declaration about the unconstitutionality of sections of the Constitution of Kenya Amendment Bill as pertains to IEBC and delimitation of constituencies, however, is legally sound though the remedy is not stopping the referendum.

It just may be the case once BBI is implemented, we will have conflicting provisions in the Constitution in which case the Supreme Court would have to resolve the conflict, or the stakeholders themselves could reach a compromise.

For example, were IEBC to delimit the constituencies in a manner that is consistent with its mandate, but deviating from what is proposed in BBI, the courts could simply affirm that if challenged all the way to the Supreme Court and that should take care of that.

We have made great strides in court independence and jurisprudential development and when this hot potato is rightly handled on appeal as it must, it will all be for the good of the country.

Samuel Omwenga is a legal analyst and political commentator.