The Supreme Court’s verdict nullifying the BBI process is another landmark ruling, hot on the heels of others that have spoken to power in Kenya within the past decade. The judgement and its near consistence with rulings on the issue at the High Court of Kenya and the Court of Appeal of Kenya bolsters Kenyans’ confidence in the country’s judiciary. Ever since the reforms that came with the constitution of Kenya 2010, the judiciary has set itself apart as a fair player among the three arms of government. Nowhere has the separation of powers been more potent and meaningful than in the interaction between the judiciary and the executive. Even against the odds of reduced budgetary allocations and threats from the president himself, the judiciary has stood tall and rebuffed every attempt at encroaching on its constitutional mandate. From the competitive selection and eventual nomination of chief justices, to rulings on electoral matters and issues concerning the constitution, the judiciary has painstakingly demonstrated strength, independence, and fairness. The BBI ruling goes a long way to cement the confidence that the people of Kenya have had on the courts since 2010.
The political implications of this ruling are likely to reverberate for a while, especially in the 2022 presidential race. On the one hand, President Uhuru Kenyatta and Rt. Hon. Raila Odinga, the chief proponents of the defeated BBI, will inevitably be seen as the losers. This might affect the apparent upward trajectory of the Azimio la Umoja movement and Odinga’s ambition to succeed Kenyatta. On the other hand, William Ruto will appear as the winner since he has always opposed BBI even though he has not been visibly involved in the court battles. He and UDA might see better days ahead.
Kenyans’ reactions to the ruling speak volumes. Most of those that have been interviewed by various media houses are evidently in a celebratory mood. Many argue that a constitution amendment that prominently strives to give more politicians additional chances to rule the people and control more resources while the common mwananchi is left with little breathing space would not be good for Kenya. Obviously, this is one of DP William Ruto’s major talking points. That it is in the lips of so many evinces that the DP has successfully been able to articulate himself in opposition to the BBI. It may also suggest that his “hustler” rallying cry in an attempt to become Kenya’s fifth president resonates with the masses. I expect him to take full advantage of this ruling: He might pronounce himself as a leader of and with the people; he may package himself as one who knows, ignores not, and follows the rule of law and therefore a friend of the judiciary who is going to defend the separation of powers and the independence of the various institutions of governance if elected. Whether any of this is actually the case is a different matter altogether.
Kenyans who have expressed dissatisfaction with the verdict have not been articulate enough. Besides indicating the absence of adequate public participation that caused the initiative to collapse, this lack of eloquence in mourning is a suggestion that the proponents of BBI might not have communicated clearly enough while getting their message across to the masses. It could also be a sign of Odinga’s unpopularity in the 2022 race to state house. Odinga could arrest the situation in a couple of ways: He could try to make his message simple, precise, and more straightforward; additionally, he may express his commitment and respect for the verdict and understanding of Kenyans’ need for a government that puts the exigencies of its people—rather than its politicians—first.