As BBI verdict comes, here's a reminder of the legal battle that led us to today

Court of Appeal judges, from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot during BBI appeal hearing. July 2, 2021. [Collins Kweyu, Standard]

It was a legal battle of the year when proponents of the Building Bridges Initiative (BBI) squared it out with those opposing amendments to the Constitution.

So high were the stakes that all the parties could not agree on anything as captured by former Attorney General Githu Muigai, who represented the Independent Electoral and Boundaries Commission (IEBC), in appealing against the High Court decision that stopped the BBI process.

“I have never seen anything like this case. We can’t agree on anything. We can’t agree on who the people are and can’t agree on basic structure when our Constitution is very clear on what can be done to change it,” said Prof Githu.

On one side was President Uhuru Kenyatta, ODM leader Raila Odinga, BBI Secretariat, IEBC and the Attorney General backed up by Parliament and some county assemblies, asking the Court of Appeal to overturn the High Court decision and allow Kenyans to decide through a referendum.

The side opposed to the BBI had economist David Ndii, activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo, Ikal Angelei, Isaac Aluochier, Kenya Human Rights Commission, Kituo cha Sheria, Thirdway Alliance and other lawyers who filed the original petitions at the High Court.

First came the pro-BBI team, with the AG represented by Solicitor General Kennedy Ogeto, Senior Counsel George Oraro and lawyers Kamau Karori and Paul Nyamodi.

In a nine-point argument, the AG accused the High Court of turning the BBI case into a personalised attack on President Kenyatta and ended up with a wrong decision that overturned the people’s sovereign power to determine their political and governance destiny.

Oraro, Ogeto and Karori made submissions on the errors they believe the High Court committed in arriving at its verdict to deny Kenyans a chance to go to a referendum.

“Our appeal is nothing more than a plea for fidelity to our Constitution. It is simply a call for restoration of the people’s sovereign will. We are inviting the court to affirm that it is not for the courts to rewrite our Constitution but the people,” said Ogeto.

According to the Solicitor General, High Court judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka elevated their personal opinions and preferences over the Constitution and the people’s will when they declared BBI unconstitutional, null and void.

He added that the judges disenfranchised over four million voters who signed to support the BBI referendum under the pretext of nullifying alleged unconstitutional acts by the president.

On the basic structure principle where the High Court judges found that there are eternity clauses in the Constitution, which cannot be amended even through a referendum, Oraro argued that the judges relied on foreign materials not applicable to Kenya.

“It is inconceivable that we can even attempt to entrench the doctrine of basic structure when the Constitution expressly provides the opposite and allows for any amendment either through a parliamentary process or through a popular initiative,” said Oraro.

On the question of presidential liability where the High Court ruled that the president can be sued in his personal capacity, Oraro argued that the finding was far-fetched since the Constitution protects any holder of the president's office.

Senior Counsel George Oraro. [George Njunge, Standard]

Raila and the BBI Secretariat raised 16 grounds of appeal, arguing that the High Court judges usurped the sovereign power of Kenyans and declared themselves the only critical decision-maker of what can or cannot be amended in the Constitution.

Their lawyers, led by Siaya Senator James Orengo, Paul Mwangi, Rarieda MP Otiende Amollo, Lucy Kambuni and Prof Ben Sihanya, argued that the High Court got it wrong on the role of promoter and initiator of a popular initiative to amend the Constitution.

Orengo urged the Appellate Court to be mindful of the consequences of dealing with a national problem.

“At the end, we urge you to come back to what is before you and ensure that the sovereignty of the people is not compromised by the Judiciary before the process is ripe for courts' intervention. There is evidence that the matters went to court before even signatures were collected,” he said.

Orengo pleaded with the court to uphold the people’s will by giving a greenlight for a referendum, stating that denying them a chance will amount to violation of the Constitution.

President Kenyatta argued he was condemned unheard when the court declared that he had breached Chapter Six of the Constitution by initiating the amendment process.

He raised 17 issues in his grounds of appeal through lawyers Waweru Gatonye, Mohamed Nyaoga and Kiragu Kimani.

Kiragu said it was absurd to say the president should not enjoy his rights as a Kenyan citizen by virtue of his office and that the High Court judges cannot be trusted for contradicting themselves and arriving at a decision to stop the BBI on the false claims that he was the initiator of the process.

For IEBC, former AG Githu and lawyer Eric Gumbo argued that there was nothing unconstitutional about the BBI since it followed the correct procedure, and that it was absurd for the anti-BBI crusade to claim it will change the structure of the Constitution when 90 per cent of the Constitution is remaining intact.

The commission framed its appeal on four main grounds, arguing that the judges got it wrong on the findings on its quorum, voter registration, verification of signatures and public participation.

The lawyers submitted that the five judges reached a wrong decision given that earlier judgements by other High Court judges had found that they are properly constituted to transact business.

The commission argued further that it followed due process in verifying the BBI signatures and that the number of people who signed to support the initiative was proof of sufficient public participation.

The National Assembly, Senate and Kiambu County Assembly joined the appellants in asking appellate judges Daniel Musinga, Roseline Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyot to allow the people decide the BBI fate.

President Uhuru Kenyatta (c), DP William Ruto and ODM leader Raila Odinga at the Bomas of Kenya, November 27, 2019. [Stafford Ondego, Standard]

Lawyer Josephat Kuyuni, representing the National Assembly, argued that the High Court rushed to make its decision even before the legislators had debated and passed the BBI Bill.

The Senate, through lawyer Job Wambulwa, added that it was not justifiable for the High Court to determine a dispute that was being handled by the legislative bodies as it amounted to violation of the principle of separation of powers.

Lawyer Njoki Mboshe, representing Kiambu County Assembly, argued that the president is a symbol of national unity and it was wrong for the High Court to fault him for taking steps to promote the BBI as a means of uniting Kenya.

But as the pro-BBI team concluded their submissions, the opponents took to the stage in support of the High Court findings that the proposed constitutional changes were unconstitutional.

At the end of their submissions, they implored the Court of Appeal judges to choose between saving the country from the BBI ‘monster’ or going down in the annals of 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.

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

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

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.

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 views of health workers for creation of a Health Service Commission.

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.

Lawyer Dudley Ochiel pleaded with the Appellate Court not to elevate political elites above the people, stating that changing the Constitution is not a normal State function but an extra-ordinary process driven by the people.

Then there was Ndii and his team of activists who raised 12 issues through lawyers Nelson Havi and Esther Ang’awa in support of the High Court decision.