Emeka-Mayaka Gekara

The battle over the Building Bridges Initiative (BBI) is far from over. Attorney-General Kihara Kariuki is expected to move to the Supreme Court to contest Friday’s verdict by the seven-judge Bench of the Court of Appeal that declared the BBI unconstitutional.

While rejecting the BBI in a stinging rebuke of the Executive, the judges agreed with the High Court that the President had no authority to initiate changes to the Constitution and that certain articles of the supreme law were protected. 

The judges also held that the President can be sued in his private capacity and that the doctrine of Basic Structure applies in Kenya.

The doctrine anchors the argument that certain articles of the Constitution were not amendable.

But the Attorney General objects to the position and plans to take the battle to the Supreme Court.

“The Attorney General has not had occasion to consider and evaluate the detailed reasoning behind the findings that were made by the various Court of Appeal judges in the BBI case.

This will be done once copies of the judgement are provided on the 23^rd August (today), as was indicated by the President of the Court of Appeal,” said Solicitor-General Ken Ogeto who led the team representing the Attorney-General during the Appeal Court hearing.

“The Attorney General has misgivings with sections of the ruling against which he will consider appealing to the Supreme Court after a careful evaluation and analysis of the detailed reasoning in the judgement,” said Ogeto.

The AG will be moving to the Supreme Court on five main grounds of appeal. Kariuki intends to argue against the judgment that the Basic Structure Doctrine applies in Kenya.

Basic structure

The Court of Appeal held that the basic structure doctrine applies in Kenya and that it limits the power to amend certain provisions of the Constitution which are considered to form the basic core of the Constitution.

“The Attorney General disagrees with this position. First, this is the first time that the Basic Structure Doctrine has been applied in a country whose Constitution provides for the participation of the people, through a referendum, in the process of amending the Constitution,” said Ogeto.

Kihara said analysis shows that historically, the doctrine has been applied only in situations where the amendment power is reserved for Parliament, and where the people have no direct involvement through a referendum.

He  intends to argue that the Constitution 2010 already has elaborate provisions to protect its Basic Structure.

The seven judges held that the President does not have authority to initiate changes to the Constitution and that amendments to the laws can only be initiated by Parliament through a Parliamentary or a popular initiative.

But the AG disagrees with the argument and the decision that the President was a promoter of the popular initiative to amend the Constitution through the BBI process.

The AG says there is no provision in the Constitution barring the President from initiating amendments to the Constitution through the popular initiative.

“The finding fails to recognise, for example, that a popular initiative is the only route through which a President who was elected as an independent candidate, or who has minority support in Parliament, may use to initiate popular amendment proposals to the Constitution,” the AG will argue.

“It is also our view that the President, just like any other citizen, enjoys civil and political rights, including the right to initiate amendments through popular initiative,” he intends to argue. 

But Law Society of Kenya(LSK) president Nelson Havi dismissed the AGs appeal plan saying it is going nowhere.

 “It is their right to appeal but they are going nowhere.  The AG is trying to give his master hope that the BBI can be resuscitated,” said Havi.

“The judges of the Court of Appeal not only upheld the key decisions of the High Court but were even more elaborate on the applicability of the Basic Structure Doctrine, the role of the President in constitutional amendments through a popular initiative, and his exposure to civil action if he violates the law,” he said that the Appeal Court decision reinforced  trial court judgment.

One of the Senior Counsel, who argued the case in the Court of Appeal and who requested anonymity, thinks the judges’ decision was motivated by their opposition to the proposal to create the position of the Judiciary Ombudsman to be appointed by the Executive.

“It is an extension of the Judiciary wars with the Executive. It is apparently repulsive to the Ombudsman idea. They relied on such academic arguments about Basic Structure to make their point,” said the lawyer.

However, the AG’s move contrasts the declaration by ODM leader Raila Odinga, one of the key proponents of the BBI, who last Wednesday indicated that he will not move to the Supreme Court to contest the judgment.

  According to Raila, his main focus will be the Azimio La Umoja campaign, which he claims will give Kenyans a platform to discuss their future.

“Whichever way the ruling goes, we shall carry on with our unity agenda. We have a bold strategic plan to unite the country ahead of the 2022 General Election. This is good and is unstoppable,” he declared.

Presidential immunity

The bold decision, which has elicited mixed reactions, was delivered by Court of Appeal President Daniel Musinga and Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

In their judgment, the majority of the judges found that civil proceedings can be instituted against the President during his tenure of office if he violates the Constitution, a position the AG rejects.

“This finding has no support in the provisions of the Constitution. It also contradicts the very essence of presidential immunity as provided for in the Constitution by exposing the President to legal proceedings during his term of office for his official conduct.”

The judges said the Constitutional Amendment Bill (2020), which captures the BBI proposals was unconstitutional and usurped the people’s sovereign power.

They also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum. The Bill had already been approved by Parliament.

“The popular initiative cannot be used by the government or the people’s representatives. Popular initiative is for ordinary Kenyans,” said the judges.

The judges, however, expunged parts of the High Court orders including a declaration said that President had contravened Chapter Six of the Constitution.

All the judges also agreed that the President does not have the authority to initiate changes to the Constitution.

The judges also unanimously agreed that at the time of collection of BBI signatures there was no legislation given on verification of signatures.