Thursday, May 13 was a watershed moment for the country as the courts declared their independence from politicians and state capture.
In a historical ruling not expected by many, a five-judge bench declared the Constitution of Kenya (Amendment) Bill unconstitutional and an exercise in usurping the will of the people.
The judges were clear that the Building Bridges Initiative process was not a popular initiative as the steering committee was a creation of the Executive. It does not fall under the category of citizens’ initiatives and could, therefore, not lead a popular initiative to change the Constitution. For violating Chapter Six of the Constitution, the judges declared the President out of order, worsening relations between Judiciary and the Executive.
In their four-hour ruling, justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka, altered the face of politics in the country. They gave Kenyans a new lease of life to determine their constitutional destiny and confirmed that politicians, including the President, cannot purport to speak on behalf of the people when it comes to Constitutional reforms. The ruling is also a wake-up call to Kenyans who had chosen to watch politicians destroy their Constitution for their personal gains and to achieve political mileage.
While many have hailed the court’s decision as bold and historic, there are those that have chosen to attack the five-judge bench and the Judiciary as a whole. Promoters of the BBI process accused the judges of “practising judicial activism and subverting the will of millions of Kenyans who endorsed the process”. They went on to accuse the judges of a personalised attack against the person and the office of the President. The BBI proponents further suggested that the judges' move was a “deliberate design to plunge the country into a constitutional crisis and chaos through judicial activism” via collusion with civil society.
In other quarters, politicians have openly attacked the five-judge bench and even asked that they be investigated. Since the ruling, threats have been directed towards the judges on a daily basis in an affront to the independence of the Judiciary.
What is clear from the threats directed at the judges, mostly by the political class, is that Kenya’s politicians are spoilt brats who are used to having things their way. When a decision goes against them, they throw tantrums and issue threats instead of using legal avenues at their disposal like all other Kenyans to pursue their cause.
As we acknowledge the freedom of speech is guaranteed to everyone by the Constitution, it must be noted that this right has limits and responsibilities. Pronouncements by proponents of BBI have been extreme, some bordering on defamation and incitement against the individual judges and the Judiciary. While it is correct to criticise the decision, it is another to issue threats attacking the judges. The judges simply did their job to interpret the law and give a decision. Any person aggrieved by that decision has a right to pursue redress using due process and not by issuing threats.
Kenya’s Constitution has clearly defined and applied the doctrine of separation of powers. It is foolhardy for Parliament to imagine that since it opted to embark on a course, then the Judiciary would rubber-stamp the process even when it was flawed and unconstitutional.
As an independent arm of government, the Judiciary and judicial officers are bound by the Constitution and laws of the country. Not the Executive and parliamentarians. It is important for the arms of government to understand this and give one another room to operate freely without interference.
It is time for Kenyans to stand with the Judiciary and defend it from the greed of the Executive and Parliament. Judiciary is not a puppet of the Executive and Parliament to operate under their whims and wishes. We must uphold the supremacy of the Constitution and the sovereignty of the people.
The Executive and Parliament are subjects to the Constitution and they cannot dictate what the Judiciary does. Neither can the Judiciary dictate parliamentary business. Each organ is separate and holds the right to make independent decisions as long as they do so in accordance with the Constitution.
The human rights activist is the executive director, Haki Africa
