Let Kenyans decide BBI fate in referendum, AG says in plea to Court of Appeal judges

Appellate court assistant Arnold Mutisya goes through files during the hearing of BBI at the Appellate court sitting in Nairobi on June 29, 2021. [Denish Ochieng, Standard]

The Attorney General tore into the conduct of five High Court Judges who scuttled the Building Bridges Initiative as he laid the basis for the Court of Appeal to overturn the judgment.

In a nine-point attack of the High Court judgment, the AG claimed the judges turned the BBI case into a personalised attack on President Uhuru Kenyatta. Thus, they ended up with a wrong decision that overturned the people’s sovereign power to determine their political and governance destiny.

He assembled a disputation of 12 lawyers led by Senior Counsel George Oraro to present his 31 grounds of appeal which were summarised in nine thematic areas.

Their call to the seven Appellate Judges was to “let the people decide” the fate of the BBI Constitutional Amendment Bill through a referendum.

Oraro, Solicitor-General Ken Ogeto and lawyer Kamau Karori gave an account of the errors they believe the High Court committed in arriving at its decision to deny Kenyans a chance to go for a referendum.

“Our appeal is nothing more than a plea for fidelity to our Constitution,” said Ogeto. “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,” 

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.

Solicitor-General Ken Ogeto during the hearing of a presidential petition on August 29, 2017, at the Supreme Court. [Edward Kiplimo,Standard]

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.

“It seems to us that the judges were keen on personalised attacks on the president and the facts and the law did not matter to them. They had to find the president at fault, regardless of the consequences on such finding on the people who promoted the BBI,” said Ogeto.

Oraro dealt with the basic structure question where the High Court judges found that there are eternity clauses in the Constitution which cannot be amended even through a referendum. But he accused the judges of relying on foreign materials to reach the decision when the Constitution expressly provides mechanisms and means through which it can be amended.

“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 of 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.

He added that the judges contradicted themselves when they ruled that certain clauses in the Constitution cannot be amended while at the same time ruling that there should be a separate referendum question for each clause that the BBI sought to amend.

Karori argued that the BBI process, went through the required constitutional process and signature-verification.

He said the High Court judges erred by declaring that the president cannot start a popular initiative to amend the Constitution by focusing only on the process that preceded collection of signatures and filing to consider the other processes.

“They failed to appreciate that the president just like any other Kenyan, has a right to participate in any political process. Their intention was to look into the hands of the president in the BBI process and fault him for all the moves he made,” said Karori.

Senior Counsel George Oraro. [George Njunge, Standard]

On the question of creating 70 additional constituencies, Karori submitted that the High Court judges got it wrong by declaring that it was a preserve of the electoral commission.

According to the lawyer, IEBC has no power to create new constituencies since their role is only to draw new electoral boundaries once the new constituencies are created by the people through a referendum.

“Creation of new constituencies is not a legal but a political question. Even IEBC cannot amend the constitution to create or remove some constituencies as provided in the Constitution,” said Karori. “That power to add constituencies belongs to the people through a referendum.” 

He also faulted the judges for finding that the IEBC was not properly constituted to verify the BBI signatures and conduct a referendum, arguing that the Constitution clearly sets the limit of commissioners to perform their duties at a minimum of three.

The Solicitor-General summarised by arguing that the High Court decision was only possible because the judges ignored basic principles and took the role of amending the Constitution.