For the past two weeks, the most important trials since the Kenyatta trial at Kapenguria in 1952-3, have been going on. Like the Kapenguria trial, the importance did not lie in the charges in the cases. In both sets of cases, these were inadequate to support the orders sought. Their importance lay in the possible serious and adverse consequences to the people of Kenya.
There were four petitions before the Interim Independent Constitutional Dispute Resolution Court sitting at the Kenyatta International Conference Centre. They were deciding on matters that had the potential to drive away the high-profile campaigns from the headlines. This because the petitions were asking the Court to postpone or cancel the Referendum to be held on August 4, 2010.
These petitions had the potential to bring to an end all the efforts of the present constitutional review process. They had the potential to dash the hopes of millions of Kenyans, and prevent constitutional review for the next twenty years.
They could condemn us to continuing with the old constitution which had proven defective to prevent the events of 2007-8. The review process emerged out of the National Accord to prevent a recurrence in 2012 of the violence and breakdown of 2007-8. Thus, the postponement or cancellation of the Referendum would not only bring down the review process, but the National Accord itself. All this was at stake in the four petitions.
Some of the petitions were brought by a combination of interests opposed to change in Kenya. They furthered partisan interests and not the national interest. They challenged the new constitution on many grounds, among them diaspora voting, abortion and kadhis' courts.
One petition wanted the Court to draft multiple-choice questions for the referendum. The most common complaint was that the petitioners' views were not incorporated in the new constitution and therefore the Committee of Experts or the Parliamentary Select Committee had acted unlawfully.
The Court delivered its judgments early this week, the judges in each case taking turns to read the two-hour long judgments.
Several petitioners had asked the Court to expunge, add, suspend, reject, or rectify various sections of the Proposed Constitution. Some petitioners wanted the words 'national security' put in as a ground to deny human rights. These, it will be remembered, were the very words that were criminally inserted at the Government Printers, exposed and rejected.
The Court held it had no power to excise or to add to the document. The Court drew an analogy with 1 Corinthians 12.12. The document had to go to the referendum as an integral product of the organs of review. The Court was not an organ of review.
The Court examined the steps taken by the Committee of Experts at every stage. It considered the joint statement published with the Reference Group, which consisted of representatives of every sector of Kenyan society, including many of the churches.
It checked on the statutory methodology which the Committee of Experts used to determine what constituted contentious issues for .the purposes of the review act. This was because the statutory meaning of those two words differed from what lay persons would expect.
It did not simply mean any strongly contested issue. It meant the issues that had not emerged from consensus on the past drafts, (such as Bomas and Wako). The Court then held that it was satisfied the experts had acted correctly and not in violation of anyone's rights.
The review act and the constitution had given discretion to the experts. The Court held that the experts had to take into account more than only the differing and hotly contested views of various groups, including the petitioners.
The experts had to take into account a large number of other factors set out in Sections 25, 4 and 6 of the review act, including most importantly, national cohesion. The Court held that the discretion had been reasonably exercised.
The petitions asked the Court to make decisions on the content of the Proposed Constitution, on what should be in and not be in the draft.
The Court held that this was not its role, but was that of the organs of review culminating in the people through the referendum. "The Court cannot have a role higher than the people in this [constitution-making] process. It would amount to a judicial coup on the people's constituent power."
The Court finally held that no basis had been established by the petitioners to order any postponement or cancellation of the Referendum.
The writer is a lawyer.
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