Prominent city lawyer Donald Kipkorir has identified five key errors in the shocking judgement by five judges that declared the BBI process null and void and called for the impeachment of President Uhuru Kenyatta.
Kipkorir said he had gone through the entire ruling and had identified five fundamental errors that makes the planned appeal by the BBI Secretariat very strong and with very high chances of success.
On the hot issue of impeachment of the President, Kipkorir said through the back door, the Judges reached a finding that the President had violated the Constitution. He said no court can reach such a finding without calling the President to rebut.
“Reaching such a conclusion demanded that they advised the President of the implications of the case if not defended. Article 145 of the Constitution is how to impeach the President, a process the Court ignored,” he said.
He said it was a error for the court to find that there are certain Chapters or Articles that are “Basic Structure” & “Eternal Clauses” and can’t be amended. He noted the Court didn’t give a single binding case law that makes those parts Basic or Eternal and neither did they refer to one precedent from abroad that we defer to.
“This conclusion flies on the face of Article 255 of the Constitution that doesn’t exclude any part of the Constitution from amendment. The Doctrine of Severability applies to Articles 255, 256 and 257 to the rest of the Constitution,” he said.
On the question who Wanjiku was, Kipkorir noted that the court did not say who Wanjiku yet they concluded that President Uhuru Kenyatta could not initiate Constitutional changes.
He said various Articles of the Constitution including but not limited to 12, 19 and 20 say all Kenyans are equal before the law and enjoy same rights yet the Judges said President Kenyatta is not entitled to enjoy the rights set out in Articles 255, 256 and 257.
On the Sovereign Will of the people, he noted that for popular initiative, the only test is raising one million signatures, but the court added another requirement that President Kenyatta can not lead the initiative to collect the signatures.
Kipkorir said that is not what the Constitution says as Sovereign Will does not exclude anyone least of all President Uhuru Kenyatta. He wondered whether if President Kenyatta can not initiate an amendment, can he vote for MCA, MP? Can he pay taxes?
“This exclusion of the President is wholly errant and heretic,” he said.
Regarding the Multiple Questions on Referendum Bill, Kipkorir said referenda world over, whether one issue or thousands of issues like in BREXIT Bill, the question is one: Yes or No.
He said the five judges have said we must do multiple questions when we want to amend our Constitution but did not give any legal basis for it.
” As BBI Bill proposes 69 changes, does it mean we have 69 multiple questions? Will 80% of Kenya Voters be able to read? How long will we take to vote if every voter has to read 69 questions? This conclusion defies logic and reasoning. The Judges aren’t infallible that we must take what they tell us is the meaning. Kenya isn’t a jurisprudential Island,” he said.
Touching on the IEBC, the Court held that IEBC isn’t properly constituted yet last year, same Court said Parliament is unconstitutional and it be disbanded.
“So, if President Kenyatta dissolves Parliament in compliance with the Court Order of last year, who will then constitute IEBC? Didn’t the Court remember it’s earlier decision?,” he wondered.
He observed that when Courts are making decisions, they take into consideration the context and environment, and judicial notice of our tribal politics, history and literacy levels.
Kipkorir said BBI intended to right out historical wrongs and to be dogmatic and give a long and winding dismissal of BBI in disregard of our history and politics isn’t enlightenment.
