Cout of Appeal Judge, Fatuma Sichale, has concurred with the High Court decision that President Uhuru Kenyatta is not immune to civil proceedings and can be sued.
Sichale made the pronouncement while reading part of her judgement on Friday, August 20, during the Building Bridges Initiative (BBI) appeal determination.
In her judgement, the Justice, however, noted that Uhuru is entitled to the protection of the law, noting that the law protects both the weak and the strong, all of them being Kenyan citizens.
“It was wrong for the High Court to have proceeded with the hearing and, thereafter, make adverse findings against H.E. Uhuru Kenyatta without ascertaining whether he had been served either with the petition and or the subsequent hearing notice or hearing notices,” she noted.
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On the President’s role in the BBI process, she noted that he is a foster of national unity and in the capacity of the President cannot take part in the popular initiative process.
She added that the issue of verification of signatures is not a policy decision that requires the Independent Electoral Boundaries Commission (IEBC) to be quorate. She added that IEBC, with three commissioners, cannot be said to be unconstitutional and that the Constitutional provisions take precedence.
"The verification of BBI signatures was not null and void for lack of quorum, and neither was it a function that required a policy decision,” Justice Fatuma Sichale noted.
“It must be absurd to claim that it must have five commissioners to be quorate. Verifying signatures is not a policy decision.”
Justice Francis Tiuyot, in his judgement, had noted that the IEBC quorum must be seven commissioners. He argued that the IEBC should carry out its functions with all hands on deck.
“Anything less is to weaken the commission. The commission needed to be quorate. IEBC was not quorate as it verified the signatures,” Tuiyot pronounced.
On the question of basic doctrine, Sichale noted that the basic structure of the Constitution does not hold since a constitution is a living document, not cast in stone.
"The Indian Basic Structure ruling is not relevant to our situation,” she declared, but cautioned that a constitution should not be so easy to amend and neither should it be so hard to amend, adding that both conditions are a recipe for chaos. According to the Justice, a balance needs to be struck so that amendments can happen but not be abused.
Justice Gatembu Kairu, on his part, noted that the doctrine of basic structure is not an alien concept as alluded to by some parties. He concurred with the High Court and noted that the junior court was right in its methodology in interpreting the constitutional provisions from the historical and contextual perspective. The complaint that the court misapprehended the methodology applicable was not well-founded.
Sichale, while wrapping her presentation, cautioned that the courts should not take over the role of constitutional amendments.
“Every judge will have their list of values regarding what is eternal. I am of the persuasion that the contest of what is amendable and what is not should not be left to be a matter of judicial innovation. Judges just like parliamentarians cannot assume supremacy over all others as indeed it is the people who are sovereign
“It is not correct to elevate judges to the status of demigods. Just as it is possible to have a distrustful and rogue Parliament, it is also possible to have a rogue and distrustful Judiciary,” she warned.
All the seven judges will present their individual judgement before the President of the Court of Appeal, Justice David Musinga reads the final judgement. The judges are addressing 21 questions ruled upon by the High Court which declared the BBI null and void.
The seven-judge bench includes; Justices Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
