BBI promoters accuse judges of activism, vow to appeal court ruling

They accused the judges of practicing judicial activism and subverting the will of millions of Kenyans who endorsed the process, with the help of a section of politicians opposed to the BBI and members of the civil society.

Mr Mohamed, who spoke in the company of Jubilee party secretary-general Raphael Tuju and a host of other leaders, also took issue with the judgment made on the character and the integrity of the President, saying the sentiments by the judges were signs of judicial overreach, actions they intend to appeal.

“Yesterday, the High Court of Kenya pronounced itself on issues raised by a number of petitioners with regard to the BBI. Five judges dismissed the whole exercise.”

“They made very personalised attacks against the person and the Office of the President. This was a very deliberate design to plunge the country into a constitutional crisis and chaos through judicial activism,” said Mr Mohamed.

Moments after the shock ruling that has jolted ‘reggae’, DP Ruto took to his Twitter handle to hail the development.

Ruto's reaction on Twitter

“There is God in heaven who loves Kenya immeasurably. May God's name be praised forever…Our democracy is anchored on the rule of law, constitutionalism, separation of power and respect for independent institutions. All patriotic citizens must defend these tenets just like Judiciary did. Now let's focus on Covid-19 vaccination, economic recovery, the Big 4 Agenda and stay united,” DP Ruto said after the ruling.

The Suna East MP said the ruling by the judges that the President had acted outside his mandate by initiating the BBI process was contradictory since the same court had previously ruled that the Head of State had the prerogative to establish a taskforce to review the constitution.

“The judges went as far as saying the President cannot instigate a referendum by appointing a taskforce or commission. In an earlier ruling, the same High Court had ruled that the task-force was properly and legally constituted and the President had acted within the law in setting up the task-force,” said Mr Mohammed who was also accompanied by his co-chairman Dennis Waweru.

He said that while the ruling elicited praise from those opposed to the BBI process, it had failed to address the process in its entirety, like the functions of the secretariat as well as the promoters of the bill, who they argued was not President Kenyatta, or ODM leader Raila Odinga.

“We note with satisfaction that the judges did not prohibit the promoters from pursuing the constitutional amendment. The judges stopped the President who is not a promoter of the bill.”

“As law abiding leaders, we respect the decision of the court, but we do not agree with it. Consequently, we are setting up a legal team to look into and appeal the ruling,” said Mr Mohammed.

At the same time, eight MPs from Mount Kenya East who met at the residence of National Assembly Speaker Justin Muturi failed to agree on the position to take regarding the High Court ruling. The meeting attended by mostly those allied to the DP was chaired by the Speaker.

Stop the whole process

DP Ruto’s camp, which has been cagey on what direction they were to take after their call for consensus was not taken up, is now asking the BBI proponents to shelve the plans to change the constitution.

Those who spoke to the Saturday Nation said that even though the promoters of the constitutional amendment have rights to appeal, it would be better for the handshake principals – President Kenyatta and Mr Odinga to stop the whole process and focus on rolling out vaccination as well as recover the country’s economy.

Soy MP Caleb Kositany said the money which had been set aside for the purpose of a referendum should be re-channelled to buying more vaccines, noting that referendum should be left to ordinary Kenyans.

“There is no need to start the process afresh, leave it to Wanjiku, let the people feel where the shoe is pinching them for the change of the constitution to happen, not the leaders. Let them forget about changing the constitution, it is not a priority; that money they had set aside for referendum, let them now buy vaccine for every Kenyan,” Mr Kositany added.

Garissa Township MP Aden Duale, another Ruto man, said that a number of the proposals in the BBI bill were illegal and could not be wished away hence the court has done the right thing to declare it unconstitutional.

“For instance, the Office of the Judiciary Ombudsman shall bring an end to the independent Judiciary that we have fought for over years to have,” said the former Majority Leader.

 However, the allies of the Head of State and former Prime Minister have said the court only paused the process but it is not yet over.

'Pre-determined decision'

Nyeri Town MP Ngunjiri Wambugu said that there is no way the court will invalidate a process which has been approved by Kenyans noting that the matter has to be appealed for the process to reach its conclusion.

“Thursday’s decision will only make this weekend a very active one politically. Uhuru being the President is still a citizen therefore we will have a referendum and it will pass,” he said.

Homa Bay Woman rep Gladys Wanga said: “The BBI judgement has only injected the much-needed impetus and passion to the process. We will remain unbowed and even more relentless.”

Tana River Governor Dhadho Godhana noted that the decision by the five-judge bench was pre-determined.

Amani National Congress (ANC) leader Musalia Mudavadi defended President Kenyatta from the hard-hitting judges, saying the biggest part of the ruling was political.

Speaking in Kilgoris, Narok County yesterday, Mr Mudavadi who joined a group of politician’s keen on wooing the Maasai community, said there are phrases in the ruling that put the President in bad light.

“The judges portrayed the President as not having good will of this country which is not true, since I know he has this nation at heart and part of the ruling was overstretched.”

Fatal legal mistake

The ruling has two sides, the legal matters which some of them were true, but there is that part of public interest and on these I think this judges were playing politics, said Mr Mudavadi at the home of former security minister in the Kanu regime Mr Julius Sunkuli.

The bench led by Justice Joel Ngugi said the President made a fatal legal mistake in attempting to change the constitution through a popular initiative, an avenue that is not available to him.

Laikipia Governor Ndiritu Muriithi said the decision had usurped the role of the people as sovereign power belongs to the people.

“They can, therefore, determine how they are to be governed. They can replace the entire constitution if they wish.When politics and the law collide, the law must give way for politics is the mother of law.  Without politics, the law does not exist. And so it shall be. And the Judiciary will come out worse off for this over-reach,” he said.

Migori Governor Zachary Okoth Obado expressed satisfaction with the ruling, saying it was the best gift during Idd.

The governor said the judges were courageous enough to stand their ground.

“When something is bad, it is bad. We need such brave and bold judges who can't allow a bad thing to continue," said Governor Obado.

Additional Reporting By Onyango K’onyango, David Mwere, Victor Raballa, George Odiwuor, Shaban Makokha And Derick Luvega,George Sayagie, Rushdie Oudia, Ruth Mbula, Vitalis Kimutai and Shaban Makokha.