Lawyers push Supreme Court to stop BBI 'reggae'

Former LSK President Nelson Havi and lawyer Esther Angawa at the Supreme court building on Tuesday,January 18, 2022 during the commencement of the hearing of the BBI appeal case.[Collins Kweyu, Standard]

Opponents of the Building Bridges Initiative have asked the Supreme Court to stop the BBI reggae by upholding decisions made by the High Court and Court of Appeal, whose judges ruled that sections of the Constitution targeted for amendment cannot be changed.

David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei asked Chief Justice Martha Koome, Deputy CJ Philomena Mwilu and Justices Mohamed Ibrahim, Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola, and William Ouko to find that the intention of the reggae brigade was to alter the 2010 Constitution.

They made their submissions through lawyers Nelson Havi and Esther Ang’awa.

Havi told the judges that Kenya's 1963 Constitution allowed Parliament to alter any part but not Article 156, which gave directions on regional governance. According to him, the 1969 Constitution had similar terms. In his submissions, he said that since independence, Kenyans have shielded the Constitution from dismemberment.

He argued that there is a difference between amending a constitution and dismemberment. Havi, the former Law Society of Kenya president, said dismemberment amounted to completely altering the constitution.

According to him, BBI was meant to dismember the 2010 law.

The theory that says a constitution cannot be changed is known as the "basic structure doctrine".

“Is basic structure doctrine applicable in Kenya? The answer is yes,” said Havi.

At the end of the day, the questions boiled down to whether Kenya's Constitution can be amended and if so, which chapters and how an amendment should be done.

At the heart of the case is Article 257 of the Constitution, particularly Chapters 1, 2, 4, 9, and 10.

Article 257 explains the process through which the Constitution can be changed. It says that an amendment may be proposed by a popular initiative supported by at least one million registered voters. The popular initiative can either be in form of a general suggestion or a draft Bill.

Such a suggestion or bill is then presented to the electoral commission. If the commission is satisfied that the initiative meets the requirements, it will then submit the draft to each of the 47 county assemblies for consideration.

“If a county assembly approves the draft Bill within three months after the date it was submitted by the commission, the Speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two houses of Parliament, with a certificate that the county assembly has approved it.”

Havi then said that the government’s structure was among the protected clauses in the Constitution. According to him, Kenyans deliberately blocked Parliament from fusing with the Executive by ensuring that there were no MPs in the Cabinet.

At the same time, the Judiciary was made independent of the Executive. One of the proposals in the BBI was that the president could appoint an ombudsman for the Judiciary. Havi told the judges that by BBI proposing an ombudsman who is an appointee of the President, it went against the will of Kenyans.

According to him, separation of powers could only be altered by involving the constituent power, which is Kenyans.

He also argued that the word 'alter' was in the 1963 and 1969 constitutions but not in the 2010 one.

On whether the president can initiate a popular initiative, the lawyer argued that he cannot.

“The president cannot be the president and at the same time be the people," said Havi. "If the president is immune, if the president is supposed to protect the Constitution, the president should not be either the popular initiative or Parliament.

“The president is not the King. The president of Kenya is not a Pharaoh; he is a servant of the people of Kenya,” Havi said.

When it was Ang’awa's turn, she took on the electoral commission, saying it had no quorum when it was receiving the BBI secretariat’s signatures for verification.

“Would a legally binding decision be made by a majority of two commissioners?” she asked.

Ang'awa equated IEBC’s commissioners’ issue to a two-engine aircraft. When four commissioners resigned, she said, the plane had one engine to fly with and at the time BBI team presented its signatures, the plane had crashed.

“I urge this court not to unsettle the finding of the court of appeal,” she argued.