I don't know whether the seven members of the Bench the Court of Appeal shall uphold the judgment of the High Court, affirm it in part and set it aside in part, or set it aside in its entirety; Mr Musinga, JA and his colleagues are playing their cards close to their collective chest. I wish I could tell you whether the arguments of the appellants and respondents resonate with Bench, but I'm not a soothsayer. However, based on my observations of what was said by some of the lawyers gesticulating actively in court, I am minded to say something about the continued assumption that the president of Kenya continues to enjoy a strong hand as the head of state and government.
The legal issues of whether or not the constitution contains a basic structure, and that this basic structure contains unamendable clauses, and that these unamendable clauses, should they be amended, would mean the replacement of the constitution, is a matter I shall leave in the able hands of the seven appeal judges. Instead, let us consider the arguments that have been advanced regarding the place of the president in the amendment of the constitution. The appellants (the unhappy men, women and government officials asking the appeal judges to overturn the High Court judgment) insist simultaneously that the president can approach the amendment of the constitution in his capacity as head of state and government and as a private citizen - Schrödinger's cat of presidential power. The respondents (the nervous men, women and civil society groups that won a momentous victory in the High Court) continue to hold that the president can only bring about an amendment to the constitution in his capacity as the head of state and government; if he wishes to initiate a popular initiative to amend the constitution, they insist, he must resign his office and take his place with Wanjiku - but who among us believes that a Kenyan president would ever resign in order to persuade the people to amend the constitution to grant him more power?
The implications of whether or not the president can participate in the amendment of the constitution in his official or private capacities are the reasons for much hand-wringing among the lawyers representing the appellants because they, in my opinion, suffer vestigial warm feelings for the concept of the president as having the widest freehand to act as he pleases as can be imagined - in short, an imperial presidency. They pine for the presidential imperialism that was engendered and entrenched by the former constitution. For those of us who can remember, the way in which the repeal of section 2A of the former constitution was initiated was by the president, at a political rally in a national stadium, turning to his attorney general and ordering him to bring a Bill for the repeal of section 2A to the National Assembly.
The now-ever-present Wanjiku was not, and had hitherto never been, afforded the courtesy of being consulted. As the president would sarcastically ask seven years later, "What does Wanjiku know about constitution-making?" it is clear that it had never occurred to the men and women cheering Mr Moi and Mr Wako on that fateful day to actually ask the citizens if the restoration of multi-partyism was a good thing or not. Things have evolved considerably since then. Beginning with the Constitution of Kenya Review Commission Act of 1997, the president's free hand has consistently been statutorily constrained, culminating with the explicit declaration in the Constitution of Kenya promulgated 11 years ago: sovereign power belongs to Wanjiku. The president is no longer the sovereign - or a sovereign for that matter. He does not wield sovereign power. He only exercises the power that Wanjiku donates to him - and no more. What the High Court did on that fateful day was to state what the words of Article 1 (1) actually mean. The awful (for the president and the pro-imperial-president cheering squad) consequence of that judgment is that what Mr Moi did in 1990 cannot be done by any of his successors, no matter how compelling a reason they fashion for it. The president can no longer order his government to amend the constitution willy-nilly - he must suffer the approval or rejection of the people.
At the end of the day, when the appellate judges read their judgment, they will be answering a simple question: is the imperial presidency dead and buried or does it still possess vestigial signs of life? The answer has serious implications. It might mean the setting aside of large swathes of constitutional obligations revolving around the participation of the people in determining their constitutional fates. The answer will also reveal who among us plays the mouse to the president's cat when it comes to protecting the values and principles of the constitution - and the rights and fundamental freedoms of Wanjiku.