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From BBI To Huduma Number:List of unconstitutional Government projects

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Attorney-General Paul Kariuki Kihara, as the principal legal adviser to the Government, is on the spot following numerous cases the government has lost.

In a span of one year, the government has lost nearly 10 cases brought before law courts including the Building Bridges Initiative (BBI), Huduma Number, Minimum tax, the Nairobi Metropolitan Services (NMS), the appointment of the Chief Administrative Secretaries (CAS) among others.

These decisions by the courts according to legal experts, point to the fact that the AG is either overwhelmed or not giving the best legal opinions on such key matters.

“The reason these judgments against President Uhuru Kenyatta and his government are coming in fast and furious is not necessarily because the cases were solid, but because either the defense was weak or there was no defense at all from the AG.

So, they were essentially a one-sided story, and in an adversarial system like ours, the courts award those who prosecute their cases robustly,” a senior government official, who declined to be named due to the sensitivity of the matter told the press.

According to the official, who is also a lawyer by profession, the success or failure of a case is essentially determined by the robustness of the opposing party’s case.

“The AG is solely to blame for either putting up a weak defense or lack of it.”

The official states that the decision by our courts to put the government on the spot over violation of the Constitution shows that the 2010 Constitution is very much work in progress with continued disputes over what its text means exactly and how serious to take clauses that some parties dismiss as merely ‘aspirational’.

In the recent decision by the High court to overturn a law by Parliament requiring all MCAs to have a university degree in order to vie for the 2022 general election.

The Friday, October 15, 2021 judgment by Justice Antony Mrima is among other cases that have seen the Uhuru administration deal a heavy blow.

In his ruling Mrima declared the amendment of the Election Act by Parliament in 2015 unconstitutional saying that it is unfair and discriminatory to bar MCAs aspirants without university degrees to contest.

The decision by MrIma comes a day after the government lost another case on Huduma Number where the court declared the rollout of the card last year as illegal and unconstitutional.

On Thursday this week, Jairus Ngaah of the High Court Judicial Review Divison faulted the government for not conducting a data protection impact assessment before rolling out Huduma Number cards.

In July this year, the High Court also overturned an order by President Uhuru Kenyatta seeking to place Independent offices under his authority exposed the strained relationship between the Judiciary and the Executive. In another case on May 27, the High Court, in a judgment by three judges, declared the President’s June 2018 parastatal appointments unconstitutional.

The three judges made the declaration that the appointments by the Head of the State, which featured key political losers and former government officials, were made in an opaque manner, therefore, invalidating them.

Some of the prominent names in the appointments were Retired Chief of Defence Forces Gen Julius Karangi, former Kenya National Union of Teachers (Knut) chairman Mudzo Nzili, former Mombasa gubernatorial candidate Suleiman Shahbal, former governors Benjamin Cheboi (Baringo), Doyo Godana (Isiolo) among other individuals.

In April, the President’s administration was dealt another heavy blow after High Court Judge Mrima also declared the position of Chief Administrative Officer (CAS) initiated in 2017 unconstitutional.

One of President Uhuru’s legacy project, the BBI, suffered a major blow in May 2021, when a five-judge bench composed of Justices Joel Ngugi, George Odunga, Chacha Mwita, Teresia Matheka and Jairus Ngaa also stopped the BBI’s ‘reggae’.

This is after the judges declared the BBI process, which was initiated by the President, as unconstitutional, null and void putting an end to the proposed constitutional amendments.
The decision by the High Court to declare the BBI unconstitutional has since been upheld by the court.

However, in September the high court locked Director-General of Nairobi Metropolitan Service Maj-Gen Mohammed Badi out of the cabinet.

Justice Mrima has quashed Badi’s appointment to the cabinet and barred him from attending meetings called by either the cabinet committees or for full cabinet meetings.

He however quashed Executive Order No. 3 of 2020 and declared Badi’s appointment into the cabinet as unconstitutional.

Most of the cases that the government has lost as failure to conduct participation as required by law and the constitution.

Currently, there are so many other cases pending in court by different parties challenging the government’s actions for failure to comply with the constitution.

Among the cases that are the dissolution of the nation’s parliament on its failure to meet the country’s two-thirds gender rule.

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