The landmark High Court judgement against the Building Bridges Initiative (BBI) has rightly been hailed as the unprecedented judicial triumph it is. Still, Prof Makau Mutua argues, the judgement presents Kenya with a unique political crisis. The era of ethnic Kingpins is ending and 2022 might make 2007 look like a walk in the park as the country lurches into the elections with a deligitimised political elite, hollowed-out constitutional bodies - in short, a vacuum of legitimate governance institutions creating a petri-dish of political crisis for Kenya.
Waikwa Wanyoike argues that the recent High Court judgement that stopped BBI in its tracks, for now, was more consequential than the Maraga judgement that nullified Uhuru Kenyatta's election on 1st September 2017. As a piece of jurisprudence, it has global implications across common law countries and it has demonstrated that when the executive and parliament go rogue - the judiciary can truly be their shield and defender.
The BBI judgment is therefore historic in two ways. It is historic for its elaboration of basic structure doctrine. But it is also historic because it does history work. It is a deeply historical reading that enables us to see what the Kenyan people meant when they gave themselves the 2010 constitution.
There are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.
It is not that the 2010 constitution cannot be amended. It is just that the constitution is very sensitive about, abhors and will fight back and resist being changed unconstitutionally.
The constitutional stars have aligned and the entire judiciary has the rare opportunity to speak with one strong voice and assert its constitutional authority.
The High Court joins the family of courts that have adopted a variant of the basic structure doctrine, and has done so in an entirely unique and compelling manner.
The issues that Uhuru Kenyatta and Raila Odinga have identified as bedevilling the country have already been assigned by the constitution or the law to existing and established state agencies.
The BBI project is a return to autocratic rule, to an imperial president who is not accountable to parliament and to a parasitic model of government.
Kenya is in the throes of another agonised constitutional debate. Proponents of the new push for amendments argue that the time is right to cure deficiencies in the 2010 constitution. Yet that document is only a little over 10 years old, and followed a referendum that ushered in the most comprehensive constitutional reforms since independence […]
The Kenyan middle classes cannot anymore claim to sit on the fence. We are either for the current unacceptable and unsustainable status quo or we are the vanguard of transformative change.
As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.