Supreme Court Saves Our Country from Legal Ignorance

10 mins read

The Supreme Court in their ruling on the BBI did something amazing to Kenyans who have fought for decades to build a democratic legal process and constitution in the country.

The highest court on the land ruled that the so-called Basic Structure Doctrine which came from nowhere, to be frank, is just a joke and does not apply to the Kenyan 2010 Constitution that Kenyans voted for in the national referendum.

The nonsense that the 2010 Kenyan constitution is “unamendable” has been thrown into the garbage bag where it belongs. How we as Kenyans amend it is the only issue on the table.

Yes, Kenyans can amend their constitution as they wish. The issue the Supreme Court put on the table is the process to do so. I fully agree with the court on that.

I was terrified, in fact, annoyed at the thought by the anti-BBI legal experts that we can never change our 2010 constitution.

My argument was that you cannot turn our 2010 constitution into a Bible. You know why. My mother is an expert in biblical issues for our family.

She gave her Bible to my son and he keeps it prominently on our table in Toronto. I tell the young man that I have no fight with her grandmother and her Bible but even my mom knows there are different versions of the Bible.

I ask him. If the Bible could be amended to deal with realities then it means humans can amend anything.

He thinks I am right on that.

  • Adongo Ogony May 19, 2021. These were my arguments about the BBI. I was actually in a hospital in Ontario at the time where I was for two months. I asked them if I could talk about my country. They told me to go to the hospital library. I went there and offered my ideas about our very beloved 2010 constitution.

I like the piece written here but after reading the ruling by the judges which is pretty long and repetitive, few things struck me as strange. I had very specific views on the law as we passed it and I thought the Basic Law Doctrine applying to Kenya was nonsense.

1. The Basic Law Doctrine which permeates throughout the ruling and is the cornerstone of the judgment is arrived at by the judges merely through insinuation by the judges and there is nothing about it in the constitution.

I don’t know know how that stands in the appeal. The appellants have asked the Court of Appeal why the Basic Structure Doctrine should be applied when those who made the constitution never put such demands written in the constitution.

Are judges allowed to just imagine what they think was in the minds of those who put constitutions together?

The other issue raised by the judges on why they have literally imposed this Basic Structure Doctrine is citing the history of constitutional amendments and battles in Kenya.

I have been involved in some of those battles. As a student leader at the University of Nairobi we opposed the one party rule imposed by the then president, Daniel Arap Moi in 1983.

Many Kenyans thought we were mad to oppose Moi and may be were because many of us were arrested, tortured at the Nyayo Torture House, jailed for years and forced into exile.

We put our experiences together in publication “ We Lived To Tell “ which was written by the survivors of the ordeal when got together in Kenya in 2003.

This was after Moi was out of office and Kibaki was then the president and allowed some room for human rights groups. We worked with an NGO called „People Against Torture“ (PAT) led by the late Njuguna Mutahi who was with me at Kamiti Medium Prison 1986- 1987 my second term injail.

People can google that publication it is still online and it has some insight into battles by Kenyans to resist constitutional dictatorship.

I cite this to explain why I think that providing selective evidence of the long struggles for a democratic constitution in Kenya and bringing only the ones where people Kibaki and Raila were involved does a great injustice to Kenyans.

In fact Section 2(A) of the Kenya constitution at that time which imposed one party rule was moved in parliament by the then V.P Mwai Kibaki himself and was passed in one day.

Myself as the Secretary General of the Students Organisation of Nairobi University (SONU) took a memorandum to the State House demanding Moi takes the issue to the voters first.

The team sent to Moi by the Students Union was David Murathe, Onyango Cornelus and myself. We made it to the security at the gate with the document but I take the 5th on saying what happened there.

I bring all these up to say that the struggle for a new democratic constitution and for social justice in Kenya is complex and has taken many turns in the 60 years of our Independence and should not be caricatured into a linear format to fit into what looks to be a pre-determined Basic Structure legal system.

If judges were to just speculate about what a constitution says then there might be no need for written constitutions at all. Just preserve the supposed constitution in a DVD and the job is done.

2. There are other startling aspects of the ruling but I am exhausted now. I will mention a few. The idea of un-ammendable constitution is a long shot.

IEBC with three commissioners being illegal is already disputed by previous court ruling in the High Court. The ruling tried to bend around that by claiming the three bench IEBC may be legal for some cases but illegal for others. That is more of an opinion from the Judges.

Declaring that President Uhuru broke Chapter 6 of the constitution which is about the intergrity of leaders who have committed crimes is an overreach by the judges.

We have many leaders in Kenya today who should not run for office including whose cases have been heard in court and a negative ruling made on very serious matters and they are still clean like pamba (cotton).

We have a governor charged with the gruesome murder of a young woman who was a college student but he is untouchable because he has not been found guilty.

Which leads me to my last question. Why the heck does our judiciary allow the big moneyed people however terrible the crimes they have committed to stay out for years before their cases come to court. And yet that chicken thief is tried and convicted in less than a week.

Maybe there could be a move to solve the real issues here.

Now we know what the Supreme Decision on BBI is.

It is what it is.

The nation will be very good with the Supreme Court ruling.

We can amend this damn thing great.

We need to put power on Chapter 6 of the Constitution which declares that thugs and criminals cannot hold public offices.

We know who holds the public offices in Kenya.

They are criminals.

Chapter Six is dead. Give it life. And Kenyans will.

The Land Commission is dead.

Give it life. No the only thing they do is try to pay wages for staff.

They are gone.

Kenyans will do their constitution properly.

We will start it from the grassroots.

Kenyans know it.

It is theirs.

The Bible Constitution is over.


Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

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