KENYAN BBI DECISION HAS EXPOSED THE TANZANIA COURT OF APPEAL SOFT UNDERBELLY.
(By Rutashubanyuma Nestory)
The Appeals Court of Kenya has finally disposed the monumental constitutional case of BBI. BBI is an abbreviation of Building Bridges Initiatives which was an upshot of a "handshake" between president of Kenya Uhuru Muigai Kenyatta and his long time political adversary Raila Amollo Odinga. The "handshake" was a symbol for the two protagonists to forge a national sense of unity that will end election violence which as far as they were concerned was a culmination of "winners take all" which left election losers grousing for being left out.
To fulfil that political ambition the two leaders embarked on constitutional reforms which succeeded in raising red flags that those BBI initiated reforms had gone too far to the extent of vanquishing the aspirations, values and the spirit of Kenyans well captured and expressed in the Kenyan constitution.
A Kenyan High Court decision had held the BBI constitutional initiated reforms were unconstitutional paving a way for this appeal. On last Friday, the Kenyan Appeals Court upheld the lower court decision that BBI constitutional proposed reforms had gone too far, so they dismissed the appeal citing most of the same reasons the lower court had held.
In pleading for their appeal, the appellants had incessantly paraded Tanzanian Court of Appeal decision of the "independent candidates" to support their averments that the Kenyan constitution had no basic structure, and if that was true then constitutional reforms cannot be deemed to have gone too far. In other semantics, there was no limit to restrain constitutional reforms contrary to what the lower court has decided.
The seven justices of the Tanzanian Appeals Court under the leadership of the then Chief Justice Augustine Ramadhani (now deceased) had ruled that Tanzanian constitution had no "basic structure". Therefore, the Parliament so long as they have constitutional quorum they can mutilate the constitution the way they choose to.
The Kenyan Appeal Court took time to espouse why they strongly disagree with that Tanzanian Court of Appeal decision. First they defined what was the "basic structure". A cursory reading of the Tanzania Court of Appeal decision on independent candidates show no effort was taken to ask that fundamental question of what was the "basic structure" of the constitution. A failure to address this question had led the seven justices of the Tanzanian Court of Appeal to mislead itself when they made a finding that Tanzanian constitution had no "basic structure" which limits the extent of constitutional reforms not to upend the values and aspirations of the people of Tanzania.
The Appeal Court of Kenya defined the so called "basic structure" as the values and aspirations of the people of Kenya which have been captured in the constitution to breathe it with the spirit of that constitution. Those values and aspirations of Kenyans include human rights, equality, democracy, goid governance and the rule of law, among others. The Appeals Court of Kenya held that the spirit of the constitution of Kenya was the "basic structure" which could not be annulled during constitutional reforms. The Kenyan Appeal Court revisited some of the BBI initiated reforms that were targeting to overturn the "basic structure" and hence were unconstitutional.
They cited the creation of the office of Ombudsman who will encroach on powers of the constitutional body: the Judicial Service Commission of Kenya which hold exclusively disciplinary powers over the Judicial officers of Kenyan courts. The Ombudsman would have been a presidential appointee answerable to the president of Kenya empowered with sweeping powers to investigate judges and the magistrates, and may recommend disciplinary measures against judges whom he conclude had a disciplinary case to answer. The Appeals Court of Kenya ruled the office of the Ombudsman would have been a terror to the judiciary. And, judges would have to think twice before delivering decisions against the government in fear of executive reprisals engineered by the executive appointed Ombudsman.
The Appeals Court of Kenya held the office of the Ombudsman violated the "basic structure" of the Kenyan constitution by compromising Judicial independence which is what Kenyans aspired when they enacted the new constitution in 2010.
Guided by the Kenyan Appeal Court decision, it is clear that the Tanzanian Court of Appeal wrongly made a finding that Tanzanian constitution has no "basic structure" because they did not define what was the "basic structure". Had they made that effort they would obviously come to a conclusion that all constitution must have a "basic structure" because without it that constitution is no constitution.
How can a constitution be alive if it does not express the values and aspirations of the society it purports to represent. That kind of constitution is not worthy the ink it was written.
In specific examples, can the Tanzanian Court of Appeal decline to interfere with parliamentary constitution reforms which overtly outdo the independence of the judiciary simply because the Parliament had requisite quorum when passing those constitutional reforms? If the constitutional reforms passed by Parliament abolish the judiciary will the Court of Appeal held its peace simply because the Parliament had quorum and from the Court's finding the Tanzanian constitution has no "basic structure"? We know answers to those questions without the desire of furthering the inquisition.
Later in the comfort of retirement, the then Chief Justice Augustine Ramadhani (now deceased) reclaimed his dignity when he was candid enough to concede the "independent candidates" decision was delivered under political duress! We keep wondering what kind of political duress the seven justices of the Tanzanian Court of Appeal were subjected to.
But when the retired Chief Justice Augustine Ramadhani gunned down the presidency in 2015 through the ruling party CCM conspiracy theorists had a fertile ground to get their tongues wagging. Was this political duress the learned Judge had in mind when he distanced himself from that diabolical ruling? Was he promised the CCM presidential nomination ticket by depriving the nation the freedom we hanker from the stranglehold of notorious political parties? Did CCM snubbed his candidature as a revenge for divulging that the judiciary is in bed with CCM regime?
Since he died without even bequeathing us with his memoirs there will always be a conspiracy theory to engage our amenable minds.
(Rutashubanyuma Nestory is a Tanzanian public policy analyst based in Nairobi Kenya.)
(He can be reached through his email
Rutashubanyumanestory@gmail.com)
