Court of Appeal Judge Justice Patrick Kiage excited Kenyans while reading his verdict on the Building Bridges Initiative (BBI) on Friday, August 20, 2021.
Justice Kiage stated that some of the arguments presented by the lawyers defending the BBI had the air of the "surreal" around it and left him wondering whether there are "facts" and "alternative facts".
He remarked that some lawyers painted a surreal picture of the Basic Structure doctrine, which he opined was the most contentious issue in the BBI appeals.
"Some counsels painted a surreal picture of the Basic Structure doctrine, making it sound as if it were a new thing in our jurisdiction. But it was there before. Some were out to mislead the court," the judge stated.
Justice Kiage challenged counsels to endeavour to apply their legal minds and extract the true meaning of a subject adding that only then can they be said to have assisted the court.
He also threw jabs at the lawyers for castigating judges for relying on foreign jurisprudence while tabling evidence from foreign courts.
Notably, during their submissions at the CoA, Senior Counsel George Oraro stated that the people can make any amendments to the constitution as they deem fit as long as they so desire.
He also stated that Judges cannot come up with standards not provided in the constitution thereby raising the bar.
His fellow Senior Counsel James Orengo's opening salvo was that the people are sovereign and do exist without or outside the Constitution. He was dismissive of the judges stating that they invented basic structure concept.
Former Attorney General Githu Muigai made a bold assertion that the 2010 constitution did not write the laws of Kenya which he argued had been the same since 1897.
Protecting the Constitution
A section of Kenyans were particularly impressed by Kiage's comments when he asserted that those who swear by the Constitution must be ready to live with its requirements.
Notably, Justice Kiage maintained that the constitution challenges judges to be warriors in the defence of human rights and the rule of law.
"The constitution calls on judges to be warriors in the defence of human rights and the rule of law, avers judges are part of a global community and are enjoined to borrow and apply progressive ideas and practices from other jurisdictions in their work," he stated.
He left netizens thrilled with his gems like when he noted that "the spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion".
"The same way new wine cannot be stored in old wineskins, it will be totally illogical to try and squeeze a transformative constitution within the suffocating straight jacket strictures of formalistic or positivistic interpretation," the Appellate judge stated.
Justice Kiage also called out MCAs stating that they hurriedly passed the BBI Bill as a sign of gratitude for the Ksh2 million car grant they were promised.
"The Constitution deliberately states that counties shall consider the bill for 90 days. What was witnessed in many counties was a farcical disregard of the people. A mad rush to demonstrate personal gratitude and party loyalty. The people did not matter," Justice Kiage stated.
"The MCAs had 90 days to engage public participation and discuss the bill before supporting the bill. What was witnessed is that through incentives like 2M and car grants, they passed the bill hurriedly, with no regard for the people's wishes.," he continued.
The Court of Appeal Judge maintained that the President does not shoulder any obligation to initiate constitution changes, reiterating comments by judges who spoke earlier that his duty is to obey and defend it in keeping with the oath of allegiance.
