New administration under Samia Suluhu gives hope after 5 years of hopelessness

Human rights, democracy, the rule of law are part of the background of the basic structure of the Kenyan constitution

A convicted public servant is treated by magistrate courts with velvet gloves because despite stealing billions they are ordered to part with peanuts or spend few months behind bars.

Unlike senior convicted public officers who can bribe their way out of trouble, the opposition are treated harshly before magistrate courts for several reasons.

One, they cannot bribe their way out of injustices inflicted upon them.

Second, the Resident Magistrates are promoted on a criterion of mistreatment of the opposition. So Magistrates Courts are highly motivated to unleash hell to the opposition by heavy fines, long term sentences consequently condoning illegal detainments for long time

4th Judge of Kenyan Appeal Court, Hon Patrick Kiage, held that Tanzanian Court of Appeal decision of the AG vs Reverend Mtikila on basic structure is inapplicable in Kenyan constitution.

The claim by Tanzanian highest Court that the Parliament has powers to change anything in the constitution because they have quorum is bad law.


Our Take.

The former chief Justice Augustine Ramadhani (now deceased) must be turning in his grave. How can a parliamentary quorum has anything to do with human rights, democracy and the rule of law which embody the basic structure?

Amendments of the Kenyan constitution is limited and the basic structure cannot be assailed in constitutional reforms but enactment of a new constitution which was not a case in consideration under BBI

Breaking news


The Kenyan Court of Appeal has thrown out the BBI as unconstitutional after the 4th Judge held so. With three judges still to deliver their rulings but now we have the majority of members of the Court deciding BBI is untenable as far as Kenyan constitution is concerned.

Now the last issue is whether the remaining three judges will join the four judges to rule that BBI was unconstitutional.

If they do so, we will have a unanimous ruling just as a lower Court had decided in impugning the BBI.

OUR TAKE


We had already projected that a unanimous Appeal Court decision will dismiss the appeal as having no merits to be sustained by the court of law.

The 4th Judge held that constituency assemblies did not observe 90 days minimum needed to consider the opinion of the electorate.

90 days stipulated in the constitution was mandatory and rushing the BBI passage in total disregard of 90 days constitution requirement offended clear position of the constitution was unlawful

Uhuru Kenyatta had abused his powers and cannot be protected under articles of constitution impeachment that only the Parliament can hear and determine his conduct.

President of Kenya can be prosecuted for acts of commission or/and omissions carried out in contravention of Kenyan laws.

For example, if he contravenes against the ICC convention or criminal law or gross misconduct and professional misconduct.

The rule of law demands the president of Kenya is not above the law and must be held accountable for his actions like expending public resources to fund personal initiatives under the guises of popular constitutional initiative which unlawfully leans on executive power and resources.

The 4th Judge held that the IEBC drafted Bill for BBI was overreaching by lumping referendum issues and non referendum issues.

It was supposed to separate those two distinct issues.

Also, the IEBC draft Bill was omnibus and hence unconstitutional because it deprived the electorate the right of choice in each and every proposed changes in Articles of the constitution.

10 minutes recess then the finalisation of the fate of the BBI from three remaining judges

5th Judge in session

Her Lordship Hon. Justice Hannah Okwengu

She is highlighting portions of her judgment

The inauguration of Kenyan constitution was the greatest day in Kenyan rule of law and good governance.


OUR TAKE

She has already indicated that where her decision is heading. We rule she will dismiss the appeal so we have five judges now in our column

She revisits that the Parliament has no constitutional power no residual power to amend the basic structure doctrine - Indian Supreme Court

What is the basic structure?

Ringera J ruled the Parliament has no power to amend the basic structure of Kenyan constitution