Do not let the country slide back to anarchy, parties opposed to BBI plead with Court of Appeal

Court of appeal Judges from left to right Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot during the hearing of the BBI appeal. [Collins Kweyu, Standard]

Parties opposed to the Building Bridges Initiative rounded up their submissions yesterday by giving the High Court a thumbs-up for "helping the country from sliding to anarchy."

As they gave a blow-by-blow response to appeals by President Uhuru Kenyatta, Attorney General Kihara Kariuki, ODM leader Raila Odinga, BBI Secretariat and the electoral commission, the parties stated that Kenyans could not sit back and watch as the big politicians apportioned themselves power through the backdoor.

In the end, they implored the seven Court of Appeal judges handling the BBI case to choose between saving the country from the BBI "monster" or going down in history as the ones who overturned the people’s right to determine their destiny.

“If you interfere with the High Court decision, what alternative will you be offering? You will be documented as the men and women who presided over a skewed process to disown our history. Such people must be irredeemably bad and fraudulent,” said lawyer Elisha Ongoya.

Lawyer Elisha Ongoya at the Supreme Court, July 1. [Collins Kweyu, Standard]

Ongoya represented two individuals who petitioned the High Court to stop the BBI and implored the Appellate Court to save the country from a possible anarchy over creation of the proposed 70 additional constituencies.

He argued that the proposed 70 constituencies were a recipe for chaos by a section of the population who will feel they are left out in the distribution of resources.

According to Ongoya, constituencies have become the basic unit of resource distribution and that it is not a political question to be determined by politicians to reward their regions but should be determined by the people.

“It is worth noting that the IEBC has not raised any appeal against the High Court findings that the proposed constituencies were unconstitutional. They are in agreement with the judgment to prove that the BBI process was illegal,” said Ongoya.

Ongoya submitted that the High Court applied the correct interpretation of the Constitution to declare BBI unconstitutional, and that some of the lawyers accusing them of going against the will of the people are being insincere.

He said it was for the BBI proponents to convince the court that there was public participation but they failed to discharge the burden of proof which left the court with no option but to conclude that it was an initiative of the president.

Court of Appeal judges from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot. [Collins Kweyu, Standard]

Lawyer Evans Ogada submitted that the BBI was just a decision by the politicians to capture power and that the court was right in determining that the proposed constitutional changes were a direct attack on the people’s sovereignty.

“It is not correct for the appellants to imply that the High Court said whoever wants to amend the Constitution must always go to them. What they did is only to say that those who feel the constitutional amendment process is fraudulent should come to them,” he said.

Lawyer Edgar Busiega, who filed a cross-appeal on behalf of the Kenya National Union of Nurses, submitted that the BBI was illegal for failing to take into consideration the views of health workers for creation of a Health Service Commission.

He added that the BBI was only meant to serve the interests of President Kenyatta and former prime minister Odinga.

Isaac Aluochier, whose petition at the High Court led to the adverse findings against President Kenyatta, argued that the president could not run away from his pet project when it is public knowledge that he violated the Constitution by initiating BBI. 

He said the BBI Bill was dead on arrival and should have not been allowed by IEBC to go the 47 counties for approval.