Defining Moment for Appellate Judges in BBI Ruling

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    7-bench Court of Appeal judges hearing the BBI case
  • The Building Bridges Initiative ruling will be issued today, Friday, August 20, by a seven-Judge bench of the Court of Appeal. The landmark ruling will be a defining moment for the seven judges, and especially for the President of the Court of Appeal, Justice Daniel Musinga. 

    The ruling will be his first monumental one since taking over the leadership of the Appellate Court from Justice William Ouko, who was promoted to a Judge of the Supreme Court. It will also be the first major case to be determined under the leadership of the current Chief Justice, Martha Karambu Koome, who assumed office in May 2021. 

    Addressing the pressure weighing on them, Justice Musinga, on June 11, urged all parties involved to allow the seven-judge bench to undertake its duty without partisan or bi-partisan interests. 

    “Let us respect one another and be balanced in our comments. Please allow the court to make a fair properly informed decision without unnecessary attacks, comments by all concerned," advised Justice Musinga.

    Court of Appeal proceedings on Wednesday, June 30, 2021

    "Let us realise that we have an important judicial process which must be handled in a sober manner. Let us not prosecute our respective positions in the media.”

    The seven judge-bench includes Justices Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott. The seven, will rule on the legality and constitutionality of the BBI, thereby validating or invalidating the null and void ruling by the High Court on Thursday, May 13. 

    This is the most consequential case since the Supreme Court under the leadership of Chief Justice (Rtd.) David Maraga nullified President Uhuru Kenyatta’s victory in the controversial 2017 General Election. 

    Dr. Masibo Lumala, a visiting professor at Purdue University in Indiana, USA and a Senior Lecturer at Moi University told that the ruling will define the relationship between the Executive and the Judiciary, with the two having been crossed paths on several occasions and accusing each other of infringement of independence.

    “It's a difficult position to be in given that by the time Maraga left office, there already existed bad blood between the Judiciary and the Executive. Consider that some judges at the High Court who ruled on BBI were among those Uhuru declined to promote to the Court of Appeal," stated Dr. Masibo. 

    “But I believe the judges will be independent, moved by the law and that the judgment will be above board and that it will not be based on pressure from the Chief Justice or the Executive. The ruling, no matter the outcome will have an influence on the relationship among the three arms of government.”

    He argued that politicians should show trust and belief in the Judiciary, especially during this landmark ruling. According to the communications expert, rhetoric by losers and winners will shape the 2022 General Election, not only from the perspective of campaigns and voter tallying but also litigations. 

    “Until we can respect the independence of the judges, we are at risk of never believing in them. Come 2022 and the election is contested, where shall we run to for clarity?,” Dr. Masibo wondered. 

    Justice Daniel Musinga
    President of the Court of Appeal, Justice Daniel Musinga

    He added that Wanjiku (common mwananchi) will believe in the ruling issued today unless an individual contests it at the Supreme Court. Dr. Masibo, however, clarified that the common mwananchi is also aligned with agenda setters - politicians - and their trust in the Judiciary will depend on these opinion leaders. 

    “The Wanjiku is divided, those who believe in all their specific leaders, some will celebrate others will lament. Remember the MCAs voted overwhelmingly for the BBI. So the very fact that these MCAs are at the grassroots, it would be very dangerous for them if the BBI was quashed." 

    “If the case goes to the Supreme Court and BBI wins again, then the decision to denounce it will be on the hands of the mwananchi in the referendum. This is if the BBI will not win at the Court of Appeal,” Dr Masibo opined. 

    He added that ODM leader, Raila Odinga, had alluded to having trust in the Judiciary by claiming that they would not proceed to the Supreme Court if they lose. 

    “It just tells you we are at a point where we believe in our Judiciary. Those who lose should not say the judges were arm-twisted. I understand there will be a big celebration from the camps of whoever wins the case,” he concluded. 

    From the Left, Deputy President William Ruto, President Uhuru Kenyatta and Raila Odinga at the BBI launch on October 26, 2020.
    From the Left, Deputy President William Ruto, President Uhuru Kenyatta and Raila Odinga at the BBI launch on October 26, 2020.