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“You are not Wanjiku,” that is what opponents of the Building Bridges Initiative (BBI) told President Uhuru Kenyatta as they fought to maintain the High Court decision declaring the  law amendment project unconstitutional.

After two days of submissions by the President, Opposition chief Raila Odinga, the Attorney-General and electoral commission, yesterday was the turn of the BBI opponents to defend their case.

Their arguments were aimed at persuading the seven-judge Bench of the  Court of Appeal that BBI was not only an onslaught on the Constitution, but that the President cannot exploit the popular initiative route.

It was also their argument that changes to entrench articles of the Constitution can only be made with involvement of the people through a Constituent Assembly.

The petitioners included economist David Ndii, who was represented  by Law Society of Kenya President Nelson Havi and the Thirdway Alliance which deployed former Senate Deputy Speaker Kithure Kindiki, Muthomi Thiankolu and Elias Mutuma.

According to the two respondents, law reforms must protect the Basic Structure of the Constitution.

Havi and Mutuma yesterday argued that the President should have abdicated his position if he wanted to initiate a popular move to change the supreme law.

Havi told the court that the President cannot make a direct appeal to the people and join them in petitioning Parliament.

“The President, if he wants to engage in affairs of lesser mortals, must abdicate.

The President is not a mere mortal, but a superior being,” the outspoken LSK boss said.

Court of Appeal President Daniel Musinga is presiding over the Bench which consists of Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt.

Havi said the moment one becomes president, he ceases to be an “ordinary citizen” and becomes a state officer.

This was in response to a question by Justice Kiage whether the President can picket if Parliament refused to listen to him.

“He should abdicate and marry an American divorcee,” replied Havi, adding that the President cannot exercise “constituent power”.

Mutuma, for the Thirdway Alliance, claimed   the BBI process was initiated by the Executive and that the President ought to have stripped himself of power to spearhead any constitutional amendment.

“When the President was going to The Hague in 2014 he stripped himself of power and appointed his deputy as the acting President. 

He was not received at The Hague as the president, he was received as normal citizen.

He should do the same if he wants to initiate a popular initiative,” Mutuma told the judges.

He argued that the argument by lawyer Otiende Amollo  (for Raila) that the  BBI was initiated by Suna East  MP Junet Mohammed and  former  Dagoretti South MP Dennis Waweru was an “outright lie”.

Promoters of BBI 

“Who are the promoters of BBI?  Against all evidence, which was not controverted, the promoters were Dennis Waweru and Junet Mohammed but the court insists that it was President Kenyatta,” Otiende told the court on Wednesday.

He argued that Junet and Waweru were the ones who had engaged with the IEBC and collected the signatures required to push forward the initiative.

“IEBC accepted the Junet and Waweru initiative and were authorised to collect signatures from Kenyans…

They collected the signatures and submitted them to IEBC which did a letter to the counties and confirmed to them who the promoters of the BBI were,” Otiende told the judges.

But yesterday, Mutuma rejected the claim and accused Uhuru and Raila of misleading the court.

“They are taking us for a ride. Instead of them coming here and owning up, they claim that the two (Junet and Waweru) initiated the process.

The impugned amendment must be viewed as a direct product of the Handshake between the President and Raila in his official capacity,” the lawyer told the court.

Mutuma argued that though the Handshake was packaged as a national unity campaign, it was a Trojan Horse by the State to use  executive power to amend the Constitution.

He argued that in their High Court petition, Junet and Waweru had been sued as officials of the BBI Secretariat.

“The submissions by appellants is that the judges conflicted the roles of steering committee and the Secretariat…

They are telling us that the Secretariat is a business entity owned by Junet Mohamed and Dennis Waweru,” he said.

According to the Thirdway Alliance, Junet and Waweru cannot be said to be the initiators of the process.

Mutuma argued that the initiative must be seen to have originated from the BBI Secretariat which was a product of the BBI steering committee appointed by the President.

He noted that the Thirdway Alliance had filed a petition in 2018 seeking a declaration that the BBI task force which was chaired by the late former Garissa Senator Yusuf Haji was illegal.

“The issues were different and they did not touch on the amendment of the Constitution,” he argued. 

On the issue of Basic Structure, both Havi and Mutuma argued that the Constitution was supposed to be a permanent structure to endure for ages to come and not to be easily altered to meet temporary experience of political parties.

“The 74 proposed changes on our permanent structure were challenged and the High Court agreed with us.

We humbly pray that the Court of Appeal uphold it,” argued Havi. Mutuma argued that the Constitution only anticipates an amendment and not a repeal.

“There is a repeal and there is amendment. The effect of amending is to make right, correct, to rectify,” he argued.

Lawyer Esther Ang’awa, also representing Ndii, argued that the national polls body should have verified the signatures through biometrics.

“The IEBC would have asked for a list of names as opposed to signatures. It must be verified that those signatures belong to the people they are claimed to belong,” she argued.

She argued that the Independent Electoral and Boundaries Commission (IEBC) cannot rely on the Chacha Mwita ruling because it was meant to overturn a legislative amendment by Parliament.

Referendum question

The response was to Justice Kiage’s observation that Justice Chacha Mwita had allowed  the three IEBC commissioners to conduct by-elections.

In her response, Ang’awa noted that  by-elections are not a matter that requires the decision of the commission as  there was legislation governing the same.

“The judge allowed the by-election due to the legislation governing the election,” she noted.

She also supported the High Court decision that each referendum proposal in the Bill should be reduced to one referendum question.

Senior Counsel John Khaminwa is today expected to lead a team of lawyers representing Kenya Human Rights Commission to oppose the appeal with  former Justice minister Martha Karua also lined up to make her submissions against the appeal.

The Muslims for Human Rights (Muhuri) and 254HOPE are also scheduled to argue their case  against the appeal.