Apex court sunders sea for BBI, journey to Canaan unstoppable

... lift thou up thy rod, and stretch out thine hand over the sea, and divide it: and the children of Israel shall go on dry ground through the midst of the sea (Exodus 14:16)

In unanimity, the Supreme Court framed seven issues in disputation for its determination. 

Of the seven, five were allowed in favour of BBI proponents and two in favour of the opponents. The Opponents are all over popping champagne. Even those we saw endorsing BBI constitution are on rooftops gloating. Like football fans in Kenya who only adorn a T-shirt of a team that wins an encounter, politicians and surrogates in Kenya behave similarly. They only come out in support of a team that has won. It is only the courageous that stand by their ideals, win or lose.

But was the judgment really a loss for BBI? Did BBI die? With deference, I posit that BBI didn’t die. There is no rigor mortis. What has happened is hibernation. The Supreme Court, like Moses by the banks of the Red Sea, has parted the Sea. BBI proponents, like the children of Israel, are walking through the parted sea having understood where they came from and where they are going. Whilst with chariots of arrogance like the army of the Pharaoh, anti-BBI are rushing through the parted sea with heavy military matériel of Victory arrogance. They will sink in the mud.

Looking for a constitution is an eternal search of mankind. We all hope that when we find such constitution, we find nirvana. BBI constitution has nearly 80 amendments to our current Constitution. Its proponents and supporters believe that in it is the panacea for our current poverty, inequality, corruption and stunted development. We will only know when we pass it. Isaac Newton, the cleverest man in history, may have given us the Laws of Gravity and Motion. But what he really looked all his life, was the Philosopher's Stone, the elixir of life. BBI constitution is our elixir of life, our Holy Grail.

The Supreme Court has with finality told us the entire BBI process was perfect except that its substratum was taken away because the President was the initiator. The Court held that constitutional amendments must be by popular initiative (ordinary citizen) or parliamentary.

Though the majority spoke, I support the minority position that Articles 256 and 257 of the Constitution surely couldn’t have intended to make a president impotent in initiating changes to the Constitution. The US Supreme Court, the most powerful and prestigious court in the world, has always had its minority decisions later become the unanimous position. For long, the US Supreme Court didn’t consider Blacks or Women as entitled to same rights as white men. 

Public participation

Our Supreme Court settled major issues. We now know that the abstract and alien non-doctrine of Basic Structure is not applicable in Kenya. This non-doctrine intended to bind us and future generations from amending our Constitution. Such a theory is so flawed it begets logic how it went so far. How can the present generation stop future generations from choosing new governance pathways? 

Thomas Hobbes, founder of modern Philosophy, in his magnum opus, Leviathan, told us that before man lived in an ordered society with laws, life before was “… no place for industry; because the fruit thereof is uncertain: and consequently … no commodidius building ... no knowledge ... no arts … no society … and the life of man, solitary, poor, nasty, brutish and short”.

Ask yourself, why, in the 21st Century, Kenya still has cattle-rustling, FGM, witchcraft, primitive poverty, famine and lynching. Kenya is still in Hobbesian World. The current laws haven’t fixed our problems because our constitutional infrastructure is not fit for purpose. 

We need a constitution that will socially engineer Kenya. If we can't get a benevolent dictator to fix Kenya, we need a new constitution to fix us. We have wandered in the desert of want, poverty, corruption and insecurity for 59 years. To deny this reality is to be that ostrich with its head buried in sandy ground.

The Supreme Court has told us that we can change every article in the Constitution except gerrymandering our constituencies. So, every Article is up in the air. And we don’t need public participation until referendum proper begins. So, a promoter simply needs to draft a bill, collect one million signatures, forward to the IEBC, then the IEBC forwards to county assemblies, and once most of the assemblies approve it, return it to Parliament, then back to the IEBC who transmits to the public for referendum. The process is now as easy as ABC. If the President hadn’t gazetted the BBI Steering Committee, we would be basking in amended constitution.

BBI proponents

Those basking in alleged victory that BBI was killed are engaged in Danse Macabre when there is no corpse. In 279BC, King Pyrrhus of Epirus (Greece) invaded southern part of what is now Italy with over 20,000 highly trained and powerful army and navy. In the Battle of Asculum, King Pyrrhus defeated the Roman Army but at such a huge cost that his victory was empty. 

The victory took a huge toll on his army and treasury. It marked the beginning of the downfall of the Greeks and the rise of Rome. Thus, the word Pyrrhic Victory.

Before the BBI judgment, Anti-BBI cavalry had begun delegitimising the apex court. Against the norms, the court was portrayed as a State House appendage. But like Caesar’s wife, it stood above the rumours peddled against it and bared her chastity. The pyrrhic victors have belatedly praised the court, but their black stains can be seen on the walls of the Supreme Court and won’t wash away. In going to battle, they desecrated the Temple of Justice. They pulled down the columns. Soon, when they need its protection, they will find they destroyed it.

With the way cleared, the sea parted, BBI proponents have the easiest of tasks. Any ordinary Kenyan can now pick up the Bill, remove the parts relating to constituencies, collect one million signatures, take it to the IEBC, then the IEBC will transmit it to the county assemblies and then back to Parliament. As there is no need for public participation until when referendum calendar issues and the only time limit is “within three months”, the revised BBI constitution can be passed on or before August 9.

In the ashes of the judgment shall rise a phoenix of beautiful BBI Bill that ushers a new Kenya. The passage through the Red Sea is completed. The Journey to Canaan is unstoppable. Reggae didn’t stop. It was only paused. Let reggae resume with new beats. Let the rainbow streak across our skies.

Donald B Kipkorir Advocate of the High Court of Kenya; [email protected]