Why project proponents moved to appeal court

Bernice Mbugua @BerniceMuhindi

The stage is now set for the hearing of the case against a High Court ruling on the BBI case l today by a seven-judge Bench at the Court of Appeal.

Justice Daniel Musinga will preside over the Bench comprising Justices Roselyne Nambuye, Hannah Okwengu, 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 that were filed by the Independent Electoral and Boundaries Commission (IEBC), BBI Secretariat, the Attorney General and President Uhuru Kenyatta.

Attorney General Kihara Kariuki has filed 31 legal grounds of appeal against the BBI judgement that was delivered last month by a five Judge Bench. 

The quintet declared BBI illegal and also ruled that the Independent Electoral and Boundaries Commission (IEBC) was improperly constituted and that Uhuru can be sued while in office.

Through Solicitor General Kennedy Ogeto, the AG has appealed the said decision arguing that the five Judge Bench erred in law and fact by declaring the BBI Bill unconstitutional.

The AG argues the judges failed to appreciate and consider the BBI bill arose out of a proposal by the people through a consultative process.

“The learned judges erred in law and in fact by failing to demonstrate how various provisions of the Constitution of Kenya (amendment) Bill, 2020 affected the purported basic structure of the Constitution of Kenya,” he states in court documents.

IEBC, on its part, is challenging some parts of the judgement. The commission, which is being represented by former Attorney General Githu Muigai, challenges the finding that it lacks requisite quorum to carry out its constitutional and statutory mandate as well as a referendum.

The electoral body has also appealed on the findings that it ought to have carried out a separate nationwide voter registration for the purpose of the intended referendum.

The Commission also challenges the finding that it lacks requisite quorum for purposes of carrying out its constitutional and statutory mandate in relation to the intended referendum.

IEBC has also appealed on the finding that the role of the IEBC in relation to verification that the initiative is supported by at least one million registered voters and that Article 257(4) requires a special legal framework for verification of signatures and the process adopted was flawed.

President Uhuru Kenyatta and former Prime Minister Raila Odinga have also challenged the High Court decision.

President Uhuru through lawyers Waweru Gatonye, Mohammed Nyaoga and Desterio Oyatsi argues 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.

He argues 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.

President  Uhuru 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.

Raila, who is being represented by Siaya Senator James Orengo and Paul Mwangi, has raised 19 grounds in a joint appeal with the BBI secretariat.

Raila and the BBI secretariat argue the High Court judges erred in their finding that the basic structure in eternity clauses and un-amendability doctrines are applicable under the Constitution.