The Kenyan case is a case that has more politics than legality. It is more focused on revenge than restoration of what might have gone wrong in Kenya. Therefore, it must be tackled and exposed to millions of national avenues for scrutiny.

I will endeavor to offer my humble opinion on a number of declarations made by the 5 Judges of the constitutional bench of Kenya High Court. The High Court went to a political wonder-world of Ghost working.

First, the declaration that the President can be sued in his personal capacity in civil proceedings. This is one declaration that clearly demonstrates the malicious motive of the bench. These are political utterances as opposed to legal standing.

It clearly contradicts provisions of Article 143 which shields the President from both criminal and civil proceedings while in office. The above provision is as clear as clarity can be. From whence did the judges get the idea that civil proceedings can be brought against a sitting Head of State?

Secondly, the above finding cannot be separated from the declaration that President Kenyatta is in breach of Chapter six of the constitution. One of the principles of Natural Justice states that No person should be condemned unheard. How the court arrived at such a far reaching finding without giving the President a chance to be heard goes beyond the ordinary judicial activism.

Thirdly, that the requirements of amending what the court referred to or rather declared as eternity clauses under doctrine of Basic Structure were not met. Curiously, the judges cherry picked certain Articles and declared them eternity clauses which to my knowledge as a scholar was a way of arriving at a certain predetermined outcome. This was not legal but political.

How the judges fished other provisions and declared them as part of basic structure is a question of judicial conjecture. I think the Supreme Court or Appeal Court in Kenya should look at this and give an advisory opinion to shed light on this anarchist interpretational darkness into which the High Court has carelessly thrown the country into a mess.

Fourthly, the declaration that the IEBC lacks quorum. Article 250 of the constitution is explicit that a minimum of 3 commissioners is sufficient quorum for constitutional commissions. The question of quorum of 3 was further canvassed and settled by Justice Mativo in petition No. 212 of 2018. Why the judges of the High Court would impose extra constitutional requirements against black and white provisions is a study in interpretational absurdity.

Fifth, the principle of public participation as required by Articles 10, 118, 124, 201, 221 and 222 have been fully met, what was remaining was only the referendum where the people of Kenya would stamp their authority through the referendum ballot. 

Therefore, the court finding that there was no sufficient public participation is neither here nor there. It lacks logical, legal or factual legs to stand on. Recommendation for a constituent assembly is tantamount to establishing a third amendment route unknown to the constitution.

Lastly, the doctrine of coloured legislation. This doctrine is based on the maxim that what cannot be done directly cannot be done indirectly. As regards parliamentary legislative competence, the doctrine is such that parliament cannot make laws or make amendments fraudulently outside its purview.

The legal battle to defend the people’s aspirations and President Kenyatta’s legacy of a united country will be fought on land, in the sea and above the skies. A constitution is a political charter as much as it is a legal document.

Kenyans should petition the JSC for the removal of 5 Judges from the Bench. They lied in the judgment that a head of state can be sued. That shows incompetence which could trigger a conflict in Kenya.

High court created an illegal third force of a constitutional route to change the constitution of Kenya. This third route could spark a conflict and it puts Kenya between a rock and a hard place.



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