BBI back in play as AG heads to Supreme Court

Attorney General Kihara Kariuki.

Attorney General Kihara Kariuki has raised eight issues he is disagreeing with in the Court of Appeal’s judgement on the Building Bridges Initiative (BBI).

Justice Kihara, in his notice to appeal the verdict delivered on August 20, says he will contest the finding that basic structure doctrine is applicable in Kenya.

He is also aggrieved that the Court of Appeal affirmed that the Constitution can only be amended when there is civic education, public participation and engagement of the county assemblies before a referendum.

“The appellant herein, being dissatisfied with the decision of the Court of Appeal intends to Appeal to the Supreme Court against such part of the decision that upheld the findings of the High Court,” the notice reads.

Court of Appeal president Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott upheld the High Court judgement that declared the Constitution of Kenya (Amendment) Bill, 2020 null and void, prompting the government advisor to seek redress at the highest court.

The Attorney General is also aggrieved with the finding that President Uhuru Kenyatta can be sued while in office.

His argument is that the president enjoys immunity and can only be sued after his tenure.

He also argues that the Court of Appeal erred by finding that Uhuru could not initiate the BBI process and that the initiative was illegal.

Meanwhile, the Independent Electoral and Boundaries Commission (IEBC) will be raising two issues before the Supreme Court.

The electoral body is aggrieved by the court’s finding that it does not have a quorum. IEBC is however satisfied by Justice Sichale’s finding, thus, it will only appeal the verdicts by her six colleagues.

David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo, Ikal Angelei had gone to the High Court seeking to stop the attempts to amend the Constitution.

The petitioners, through lawyer Nelson Havi, urged the court to declare that five chapters of the 2010 Constitution – Chapter One, Two, Four, Nine and 10 – form the foundation of the country and cannot be altered or changed through amendments, either through Parliament or popular initiative.

Chapter One deals with the sovereignty of the people and the supremacy of the Constitution while Chapter Two declares Kenya a republic, defines its territory, national values, language, culture and devolution.

Chapter Four accords Kenyans rights, Chapter Nine is about the Executive, and 10 defines the Judiciary.

The crux of the case is that subjecting the four chapters to changes would result in a complete change of the entire law.

Court documents read that the 2010 Constitution can only be altered through a referendum and not the BBI wave or Parliament.

“If certain fundamental Constitutional provisions, principles and values are amended or seriously altered, the life of the Constitution will come to an end. It is therefore trite to say there is implied limitation to what can qualify as a valid amendment to Kenyan Constitution,” the petition reads.

It is the second time the BBI case will be before the Supreme Court.

The Supreme Court had dismissed three cases, filed by Makueni Governor Kivutha Kibwana and two counties.

The court ruled that it would not hear the advisory cases filed by Prof Kibwana, Nandi and Kericho counties as there were other cases filed before the High Court raising similar issues.

In a ruling read by Justice Smokin Wanjala, the court said there was a likelihood of issuing conflicting decisions, causing confusion on what should happen.

“In (David) Ndii and others, the High Court delivered a ruling in which learned judges identified a number of issues and set them for determination. We have critically considered the import of issues raised before this court and those before the High Court,” said Justice Wanjala.

“Indeed the two are similar and we do not see how the court will determine the two cases without venturing into the cases before this court. The two courts may issue determinations which might cause confusion.”

According to a Supreme Court bench composed of Philomena Mwilu, Mohamed Ibrahim, Wanjala, Njoki Ndung’u and Isaac Lenaola, the issues raised required rigorous interpretation, which would not have been achieved if the top court issued an advisory. 

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