SAM OMWENGA: Orengo made a compelling case to save BBI

I read a tweet claiming Senior Counsel James Orengo botched his submission before the Court of Appeal.

The lawyer claimed that Orengo failed to make a case for his clients — BBI Secretariat and ODM leader Raila Odinga — who are seeking to overturn the five-judge High Court panel that declared the BBI process unconstitutional.

Having not seen the proceedings due to unavoidable circumstances, I was a bit concerned as it is rare the ever articulate and sharp Orengo fails to make his case.

I have now watched Orengo’s entire submission and can say with unshakable confidence that he was not only his usual brilliant self, but also made compelling, factual, and legally sound submissions.

To be sure, judges are required to be impartial, fair and must hear both sides of a case before rendering their judgement—and they do though not always.

There are certain cases where the law or facts are so clear as to direct require a certain outcome regardless of what the parties say—unless the side the law or facts favour fails to make the case. Even then a judge or judges may be inclined to rule in their favour only because that is what justice requires.

The case Orengo made was strong factually and legally.

If in doubt, all you need to do is pay attention to the three questions asked of Orengo by the presiding judge and another member of the seven-judges bench.

The questions were instructive because they all reinforced his case.

For the benefit of those who have not watched the hearing, below is a substantial summary of the submission.

To properly interpret the Constitution, Article 1(1), which provides that sovereign power belongs to the people of Kenya, should be read together with the Preamble, which is that part of the Constitution that explains why we have it.

Orengo started his submission examining the meaning of these twin aspects of the Constitution and how applying their underlying principle disposes of the case in favour of his clients.

Does the Constitution of Kenya create a situation where the people as sovereign exist outside the constitution or within the Constitution?

According to Orengo, this is the fundamental question the appellate court must address because how the High Court dealt with it “is as if the people being sovereign can exist outside the constitution.”

This, Orengo argued, is contrary to the Constitution because “the answer to this question is, no, the people cannot operate outside the constitution as presently structured.”

Even with sovereign will, sovereign power, the people must comply with the Constitution, and this is clear from Article 1(1), which expressly provides that people’s sovereign power can be exercised “only in accordance” with the Constitution, with Orengo emphasising “only” to leave no wiggle room for any other interpretation.

This conclusion, Orengo rightly argued, finds even more support in the Preamble, which in eight succinct declarations makes known to us all why the Constitution was passed and promulgated in 2010.

Following Article 1(1) and guided by the preamble, Orengo argued, is the only way to establish a true democracy that abides by the rule of law.

Building on his case, Orengo cited his favourite philosopher Frenchman Volataire who once said if God did not exist, it would be necessary to create one.

In the same vein, Orengo argued, the High Court judges created the basic structure doctrine out of thin air, or as he put it, they went to Wonderland to find this creature of limited foreign countries that was birthed in India more than 50 years ago but has rarely been adopted elsewhere.

The basic structure doctrine says there are certain parts of the Constitution that cannot be amended no matter what, not even when following its own provisions.

This doctrine is what the High Court based its decision attempting to axe BBI.

As I previously pointed out, the High Court 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, it would be absurd if allowed to become the law.

Not only does the Constitution provide in articles 255, 256 and 257 how to amend it, the Supreme Court itself has recognised 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.

That already being addressed, the High Court had no reason to even touch the issue. But there is more, and this is where Orengo hit if off the park.

He rightly pointed out something the High Court itself buried in its decision and that is, there is no explicit provision covering the issue of basic structure in our Constitution. The High Court judges just created it, and then used it to declare BBI unconstitutional, which in by itself is illegal.

Orengo argued that the lower court judges put the Constitution aside and went digging into the history before passage and its promulgation in 2010 and other non-legal considerations to find a peg to hang their decision that is dangling but will soon likely snap off the hanging rope.

The Siaya senator further demystified the myth that the 2010 Constitution was the creation of Wanjiku and, therefore, only her should have initiated any changes to it.

That is just not true. The Constitution was a political settlement, not a product of Wanjiku. Orengo beamed with frustration wondering why clever politicians would try and peddle a lie otherwise.

In fact, the whole opposition to BBI is a lie.

One more reason why the Court of Appeal will likely agree with Orengo and toss the High Court’s decision declaring BBI null and void.

Samuel Omwenga is a legal analyst and political commentator.