BBI Judgement: Let Technicalities not Overshadow the Common Good for all Kenyans

Press Statement

In the last few days since Friday, 14° May, 2021, when the five Judges of the High Court made the BBI judgement, Kenyans have been treated to a lot of useful as well as misleading commentary around the Judgement.

As Manedeleo Chap Chap (MCC) Party, having read the judgment, consulted our elected leadership, our Party’s legal team and officials, and alive to the fact that the matter is under appeal hence subject to subjudice, we wish to make our general Party position known as follows:

1. As a party, we thank the Judges for going a great length to come up with the Judgement, but respectfully differ with the findings.
2. It is our respectful overriding view that the Judges placed a lot of importance on procedural technicalities and academic semantics and ignored the substantial issues that BBI seeks to cure in our society.
3. The Constitution of Kenya, 2010 enjoins our Judiciary at Article 159(2) (d) to administer justice without undue regard to procedural technicalities, which we believe, in this case include the scholarly semantics that seem to have formed a critical part of the Judges’ thinking. We are not saying scholarly work is bad, we are saying that not all academic theories and philosophies are binding.
4. As a Party, we believe that had the Judges exercised their mind on the progressive provisions contained in the BBI as well as the olitical and economic reality of our country vis a vis these procedural technicalities, perhaps, in totality, they could have arrived at a different finding. We believe that on a scale, a greater public interest is served by the passage of BBI than its stoppage. For example,
   • Most of our youth who are over 75% of the population are jobless and badly need jobs. Is not in furtherance of their human rights to have tax holidays for their businesses as a matter of law so as to create more jobs and wealth for them? How shall we ever liberate the youth if we cut the baby’s umbilical cord, that is BBI?
   • The BBI Bill proposes to allocate more than double of the current financial resources to each of the 47 Counties. Should Wanjiku, Mueni, Naliaka and Halima lose the benefits of strengthened devolution just because of a technicality? Haven’t all Kenyans been fighting to have more money going to the grassroots?
   • Kenya’s biggest challenge is corruption. BBI processes expeditious dispensation of corruption cases within 6 months and seizure of corruptly acquired wealth. Should Kenyans lose these progressive provisions of fighting corruption that is enriching only a few and just sit as corrupt elite steal their taxes?
   • Many parts of Kenya have complained of marginalization in the past. BBI proposes practical steps of ensuring equitable socio-economic development and sharing of development projects. All parts of Kenya want good hospitals, tarmacked roads, clean piped water, industries for jobs, electricity, etc. Do we continue with a skewed status quo and lose pro-people development just because we feel a certain route should have been the preferred one or a certain person should not have done what they did?
5. Legally speaking, does one become a lesser citizen and lose his/her Constitutional rights, just because they have been elected as President or Governor or a Member of National Assembly, or Member of County Assembly or even appointed Judge for that matter? When you talk about the ‘people’, isn’t the President and other promoters of BBI also “people”? Aren’t they also Kenyans with a sovereign right to propose changes to their governance charter? If other Kenyan’s don’t want, they will REJECT IN A REFERENDUM.

We urge all players be they the President, Rt. Hon. Raila Odinga, the Judiciary, Parliament, political, religious, civil society, youth, business, etc, leaders to PUT KENYA FIRST and STOP the DIVISIVE POLITICS OF US -VS-THEM. In the end, all of us want and deserve a better Kenya where fairness, justice and socio-economic prosperity thrive.In conclusion, we believe that there are many pro-people, pro-poor, pro-economy, pro-peace and stability progressive provisions in BBI which should not be lost. The time is now and Kenyans should not lose the opportunity and the momentum. As it were, let us not throw the baby with the bath water.Lastly, we wish The Hon. Attorney General and all other parties who have appealed this decision success in the appeals. We also appeal to those opposed to BBI to see the merits in a new Kenya where we bake a bigger cake and share it fairly.Thank you.

Dr. Alfred N. Mutua, EGH
PARTY LEADER AND 2022 PRESIDENTIAL ASPIRANT.
20th May, 2021