Ruling exposed Judiciary for what it is

The only rescue path left for the BBI project is if its promoters succeed to have the Court of Appeal overturn the May 13 judgment of the High Court. Of more immediacy is to get a stay of execution of that verdict awaiting the hearing of the full appeal case. 

The most critical factor before the legal arguments begin will be the composition of the judges who will hear the stay application and the appeal. 

I am not quite sure whether it was the outgoing Chief Justice David Maraga or it was the then acting CJ Philomena Mwilu who earlier this year picked the five judges who heard the BBI case. 

Anyway, when they were named, I instinctively knew the BBI cause was lost, certainly at that High Court level. I have followed enough rulings of – especially three of – those five judges, to know that, on cases touching on the current government, they are consistently predictable.

In fact, on May 2, I mentioned on this page that the BBI promoters should brace themselves for disaster from that particular High Court bench. 

I was not surprised at all when the negative judgment came out. I couldn't fathom why the BBI sponsors had remained smug all along. 

The make-up of the bench in these sort of cases matters enormously. In the upcoming matter of the BBI appeal case, Maraga or Mwilu are no longer on the steering wheel. 

BBI brigade

The responsibility of picking the Appellate bench that will hear the case rests with the presiding judge of the Court of Appeal. That is as per the Appellate court's rules. 

In all probability, the case will eventually end up in the Supreme Court, which has just undergone a major change in its composition. 

The court has a new president, the incoming CJ Martha Koome. Reportedly there is a pending reorganisation, not just at the Supreme Court, but across the Judiciary. I think that's why her nomination, vetting, appointment, gazetting and swearing-in were done at record speed. 

Who knows, maybe the fate of the BBI case in the conveyor belt of the higher Judiciary could as well explain the haste to install her. 

Former Appellate judge William Ouko has joined the Supreme Court as well. 

Time was of the essence for the BBI brigade. The first order of business was to seek a suspension, or stay, of the implementation of the orders issued by the High Court bench. That's a preliminary step before the formal filing and hearing of the appeal case. 

In an early sign of procedural confusion, Attorney-General Kihara Kariuki made the initial stay application to the High Court, to be heard by the same panel of judges that had trashed BBI! This was extremely puzzling, because he could apply for the same in the Court of Appeal. And the guy should know this. After all he was the president of the Court of Appeal before his appointment to become AG! 

Major relief

Once he realised his mistake, he hastily withdrew the High Court application to concentrate on the Court of Appeal. 

If this court grants the stay, it will be a major relief for the BBI proponents. With a stay in place, BBI will remain alive until the appeal is concluded, whenever that will be. But it will all depend on the conditions the Appellate court attaches. 

From the word go, the relationship between the present government and the Judiciary has been toxic. The nadir was the annulment of the 2017 presidential election. 

The BBI case has opened fresh hostilities. In the eyes of the state, there's a conspiracy there. 

Certain litigants in the BBI case are linked to politician so-and-so, who is in a deadly feud with the President. 

When it came to the five High Court judges, they sometimes sounded like they were conducting a premeditated judicial impeachment of the President using the BBI case as a cover. Their haughty, patronising tone did not help. 

I'll be charitable and attribute what seems like collusion to a confluence of interests. 

Judiciary Ombudsman

This Judiciary is extremely sensitive about its prerogatives. It will jump at anybody who dares attempt to amend the 2010 Constitution in a manner that touches those entitlements. It's all about self-interest. But this will be clothed in mysterious doctrines like "eternity clauses" that are supposed to be unamendable for all time. It's a parody. 

In 2010 our intention certainly wasn't to trade one form of dictatorship for a judicial one. 

Behind all this is the intemperate fear of the office BBI proposes to create of Judiciary Ombudsman. The Judiciary is vehemently opposed. Why? 

In contrast with the other arms of government, the creators of the 2010 Constitution neglected to institute robust mechanisms of public accountability for the Judiciary. 

Judicial officials wax lyrical about judicial independence. What they don't want to hear is about accountability. It's like living in a fairy tale world. 

This has bred a culture of arrogance, even impunity. Faced with public embarrassments like the Akasha cases going to the US, our Judiciary sees no reason for self-examination. It remains out of touch. Self-absorbed. Corrupt. Partisan. Lacking humility. 

Guys, get out of the bubble and relate.

@GitauWarigi