Four points that will settle BBI duel before the highest court

Former Attorney General Githu Muigai gives his submissions during the second day of hearing of BBI at the Appellate's court on June 30, 2021. [Denish Ochieng, Standard]

The Supreme Court will ponder on four points raised by Attorney General Kihara Kariuki and Independent Electoral and Boundaries Commission (IEBC) to determine whether reggae should continue or not.

At the heart of the case is whether the BBI process was legal or not and if is amendable or not. At the same time, the president's immunity and IEBC quorum will also either tilt the scales of justice in their favour or spell doom for the Constitution-change push.

The fourth issue will be if the court has powers to intervene in a referendum when the commission has verified one million signatures. In his case, the AG argues that BBI involved consultative forums where Kenyans expressed their desire to amend the Constitution to meet their needs. According to him, there was no evidence that the BBI was meant to benefit the elite. Instead, he said, the initiative was meant to cure tribalism, incessant corruption in the country, and ensure equity.

Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, and Justices Mohamed Ibrahim, Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala, Isaack Lenaona, and William Ouko heard that Kenyan law can be amended. At the same time, AG’s team led by Solicitor General Ken Ogeto argued that the president did not initiate BBI although he had a right to do so as a private citizen.

“Even if the basic structure doctrine was applicable in Kenya (which we dispute), the absence of clarity on what the basic structure is, would create much legal and constitutional difficulty. This is a matter that we humbly urge this court to clarify with finality,” he argued.  

The judges will also determine whether the court had powers to reverse the will of the people. Ogeto argued that the Referendum Bill involved engaging Kenyans and gathering more than one million signatures in support of the BBI. This, Ogeto said represented what the people wanted.

At the same time, the electoral commission implored the Supreme Court to save it from being crippled in the event the number of commissioners reduces to three. In its two-point argument in the battle for the BBI, the commission stated it had required quorum as provided in the Constitution to conduct business and did everything right before approving the constitutional amendment process.

Through senior counsel Prof Githu Muigai and lawyer Eric Gumbo, IEBC wants the apex court to overturn both the High Court and Court of Appeal findings that it had no quorum to approve the BBI signatures and send the proposed referendum Bill to county assemblies and parliament for approval.

“Their decision had the effect of declaring that IEBC operated for sometime without constitutional authority. The judges erred because there was no just cause to go outside the Constitution in determining the number of commissioners required to conduct business,” said Muigai.

According to the lawyers, IEBC was only aggrieved by two portions of the Court of Appeal which declared that it had no quorum and that it was under obligation to ensure BBI promoters conducted public participation before subjecting the proposed constitutional changes to a referendum.

On the question of quorum, Prof Muigai submitted that the Appellate Court made a mistake in relying on the IEBC Act which had placed minimum quorum at five commissioners when the section had been declared unconstitutional by the court.

At the time the commission okayed the BBI Constitutional Amendment Bill in 2020, they had only three commissioners following the resignation of five others.

“When a court declares a law as unconstitutional, it remains so unless overturned by a higher court,” said Muigai.