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Fireworks are expected tomorrow at the Court of Appeal when the petition against  a High Court ruling on the Constitution of Kenya Amendment Bill (2020) aalso known as the Building Bridges Initiative (BBI) bill, kicks off.

Court of Appeal President, Justice Daniel Musinga, will preside over the Bench that consists of Justices Roselyne Nambuye, Hannah Okwenguh, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt, who was recently promoted from the High Court.

The seven-judge Bench will hear the appeals filed by the Independent Electoral and Boundaries Commission (IEBC), BBI Secretariat, the Attorney General and President Uhuru Kenyatta.

They are challenging a High Court ruling which declared BBI illegal and barred the electoral body from conducting a referendum on the law amendment initiative.

Improperly constituted

The High Court had ruled that the commission was improperly constituted and that the President can be sued while in office.

On Friday, a three- judge Bench allowed Interim Thirdway Party leader Miruru Waweru to adduce more evidence in the appeal.

Waweru will now use the Parliamentary Report on BBI as evidence in the matter.

The committees of both Houses had adopted the joint report, which was in relation to a legal framework to regulate amendment of the Constitution by popular initiative.

Today, a three- judge Bench formed by Justice Musinga will hear an application by the Attorney General, which seeks to strike out city lawyer Charles Kanjama’s BBI appeal.

“The application will be heard by way of written submissions; there shall be no appearance of Counsel in court or via video-link,” read a notice from the Deputy Registrar.

Law professors

Another Bench will hear two applications filed by two law professors seeking to be enjoined in the appeal as amicus curiae (friends of the court).

Professors Charles Manga Fombad and Migai Akech argue that the High Court misapplied the Basic Structure Doctrine.

Their applications were certified urgent and they will be heard today by way of written submissions.

“There shall be no appearance of counsel in court or via video-link,” read another notice from the Deputy Registrar.

In their appeal, Uhuru and ODM leader Raila Odinga, the BBI proponents, argue that the High Court judges usurped the sovereign power of the people of Kenya and declared themselves the critical decision-makers of what can or cannot be amended in the Constitution.

Non-existent initiative

The two Handshake partners state that  the judges stopped a non-existent initiative because the BBI Taskforce ceased to exist in June 2020, and was, therefore, incapable of promoting a drive to amend the Constitution.

Uhuru also challenges the High Court declaration that he can be sued in his personal capacity and not as the President of the Republic of Kenya.

He is further aggrieved with the declaration that he contravened Chapter 6 of the Constitution, and specifically Article 73(1) (a) (i) of the Constitution, by initiating and promoting a constitutional change process under Article 257 contrary to the provisions of the Constitution.

He is also fighting the judges’ declaration that civil court proceedings can be instituted against the President or a person performing the functions of the Office of the President during their tenure of office in respect of anything done or not done contrary to the Constitution.

IEBC  on its part will be challenging the finding that it lacks requisite quorum for purposes of carrying out its constitutional and statutory mandate as well as organising a referendum.