Activist Isaac Aluochier has once again stirred debate with his anti-Building Bridges Initiative (BBI) presentation at the Supreme Court, a few months after arguing against it at the Court of Appeal which upheld its invalidity.  

On Wednesday, January 19, the arbitrator argued that the 2010 Kenya Constitution is supreme and above everyone. 

Alouchier argued that the Basic Doctrine structure which is at the heart of the BBI appeal contradicts the Constitution with special focus on Article 1 (1) which states that 'All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” 

Upon this basis, the Alternative Dispute Resolution (ADR) practitioner posed a tough rhetorical question to the apex judges led by Chief Justice Martha Koome, to the dismay of those who were following the court proceeding.  

File image of Isaac Aluochier.

He wondered whether the heads of the Judiciary, Executive, or Legislature were above the law that governs the country and had the authority to challenge the legality and validity of Article 1 (1).  

"Who is boss in this country? Is it Martha Koome, Uhuru Kenyatta, David Ndii, or us the people? If we the people are boss then our word should rule and prevail. If we put qualifiers in judicial immunity like 'unlawful' we mean exactly that," he stated.

He concluded by saying the Kenyan people have been given power by the Constitution in accordance with Article 1 (1). 

“If our Constitution is supreme, no law can purport to construe or invalidate its provisions. 

"As such, they are the boss and any constituted power be it the Executive, Legislature, Judiciary or independent commissions must conduct their affairs in accordance with the Constitution," Aluochier added.

In a rejoinder, Chief Justice Martha Koome concurred with him and thanked him for clearly stating that the people are the boss.

"Thank you for ending on the happy note that Martha Koome is not the boss, we the sovereign people are the boss," she remarked. 

Earlier on, Alouchier had argued that the amendment of the Constitution ought to follow requisite processes as stipulated by the law and that it is imperative for all to respect its structures. 

He further opposed Attorney General Paul Kihara Kariuki and Solicitor General Kennedy Ogutu, stating that President Uhuru Kenyatta does not enjoy absolute immunity and can be sued in court for violating the Constitution.  

“Article 143 (2) gives immunity against civil proceedings being instituted against him, not electoral or constitutional proceedings. After all, we have presidential petitions. We are only talking about civil matters. 

"When we hear the president’s team arguing for absolute immunity on grounds outside the Constitution, you must not allow yourself to be misled,” he pleaded with the seven-judge bench.  

Aluochier declared interest in the Migori Senatorial seat. His father, John Linus Aluoch Polo, was elected as the Rongo MP in the first multiparty General Election in Kenya in 1992. By David Kingsley, Kenyans.co.ke