This archive report was first published on 25 June 2021.
The BBI appeal is set to be heard by a seven-judge bench at the Court of Appeal, with many hoping that the initiative will be resuscitated. However, the outcome is far from certain, as the judges will be influenced by the political and social environment.
Unlike the High Court bench, which was largely predictable, the Court of Appeal bench is largely unpredictable. This makes it difficult to predict the outcome of the appeal.
While the courts are supposed to focus only on the law in their decisions, they are extremely sensitive to political and societal realities. This is especially true of quasi-political cases like BBI.
Even with the best legal arguments, judges may throw away cases that they feel are socially unpopular. They may still find a way to rationalise their decisions, but in reality, the decisions are informed by the political and social environment.
As a result, the BBI lawyers must argue their case convincingly to the seven-judge bench. However, outside of the courtroom, its promoters must recognise that the political and social environment will undoubtedly affect the approach that the judges take.
The political haemorrhaging that is going on at Jubilee, in favour of parties that publicly oppose BBI, is not helpful to the appeal. It sends the message that the initiative is grossly unpopular and anti-people.
Consequently, those who desire its survival must keep public focus on the social and political benefits of the BBI. They must refrain from unhelpful attacks on the Judiciary and articulate the case for why Kenya must have an expanded Executive and its relationship to national unity and nation-building.
They must also make the case for constitutionally mandating increased revenue allocation to counties to imbue equity and social development. Anyone hoping for the resuscitation of BBI must keep the public conversation on these BBI ideals loud and live.
