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Make or break as fight for soul of BBI returns to Supreme Court

Court of Appeal Judges at the Supreme court building, August 2021. [Collins Kweyu, Standard]

It will be another battle royale at the Supreme Court from tomorrow as the Attorney General seeks to resuscitate the Building Bridges Initiative (BBI) which was mooted to amend the Constitution through a referendum ahead of the August General Election.

The AG will be fighting in the same corner with President Uhuru Kenyatta, ODM leader Raila Odinga, the BBI Secretariat and the electoral commission.

Together, they are seeking to overturn both the Court of Appeal and the High Court verdicts that put a stop to the constitutional amendment drive also popular christened “Reggae”.

Also fighting for the BBI soul are the Senate, National Assembly and several county assemblies that believe the lower courts made a mistake by denying Kenyans the chance to change the Constitution.

When the seven judges; Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko, had the first sitting over the dispute in December, they spelt out seven key issues for determination.

These were; whether the President can initiate changes to the Constitution by popular initiative and whether the BBI proposal to create 70 new constituencies was unconstitutional and whether civil proceedings can be instituted against a sitting president.

They will also be seeking to determine the place of public participation in amending the Constitution, the minimum quorum required for the Independent Electoral and Boundaries Commission (IEBC) to conduct its business, and whether each proposed constitutional change should be a separate referendum question.

Finally, they will be seeking to determine whether the basic structure doctrine is applicable in Kenya and if it limits the power to amend the Constitution.

“The court is of the considered view that the seven issues are what form the basis of the BBI appeals and which the parties need to address us on in their submissions,” the judges said.

Those hearings now begin tomorrow.

AG Kihara Kariuki, being the first appellant, will open the stage to present his submissions.

The outcome of the case will have far-reaching implications on the August elections whichever way the judges rule.

Kariuki, through Solicitor-General Kennedy Ogeto, has framed the five core issues he argues the Court of Appeal got wrong when it declared BBI unconstitutional and issued a permanent order barring IEBC from conducting a referendum on it.

“We will be beseeching the Supreme Court to find that the Court of Appeal erred when they disregarded clear provisions in the Constitution on the steps required to amend the Constitution and which were duly followed by the BBI secretariat,” said Ogeto.

On the question of basic structure, which the Court of Appeal found is applicable in Kenya, the AG argues the judges were wrong by disregarding clear provisions in the Constitution which provide that all clauses are amendable.

AG Kihara Kariuki. [Samson Wire, Standard]

The basic structure doctrine provides that the constitution of a sovereign State has certain characteristics that cannot be erased by its legislature. The doctrine states that regardless of the existence or absence of an express limitation, there is an implied and substantive limitation to a constitutional amendment, the objective of which is to protect the “basic structure” or the “core element” of that constitution.

The basic structure principle was one of the hotly contested issues and which both the Appellate Court and High Court judges said would limit amendments to the Constitution unless such a move follows four sequential orders of civic education, public participation, constituent assembly debate and finally referendum.

On a president’s authority to initiate constitutional amendments, the AG argues that the Constitution does not discriminate on who can start a popular initiative.

He also faulted the Appeal Court’s findings on the creation of 70 additional constituencies, arguing they ignored the rights of citizens who have the power to determine electoral boundaries through a referendum.

President Kenyatta, in his submission in support of the AG’s appeal - filed through lawyer Waweru Gatonye - argues that the Appeal Court erred by finding that the Head of State can be sued in his personal capacity yet he enjoys immunity against civil proceedings while in office.

“The Appellate judges erred in finding that the President can be sued in his personal capacity during his tenure in office. We will demonstrate that it is only after the President leaves office or is impeached that he losses immunity and can be sued in a personal capacity,” said Gatonye.

The President is also aggrieved by findings that he could not initiate constitutional changes through the BBI and will submit that he has the right, just like any other Kenyan, to participate in a constitutional amendment process.

Raila, on the other hand, jointly filed his submissions with the BBI secretariat through lawyer Paul Mwangi with his major argument being that the Appellate Court erred in finding that there was no public participation. Raila asserts that every stage of the process involved the people and their representatives.

On the basic structure principle, Mwangi said no Constitution is cast in stone as the people have the power to amend it through a popular process and referendum.

“In any event, applying the doctrine will cause constitutional chaos since it will limit the people’s power to determine their governance,” he said.

Mwangi said they will prove the Appellate Court got it wrong by finding that the president was the initiator and promoter of the BBI process and that there is no law that limits him even if he was the initiator.

Lawyer Paul Mwangi. [Collins Kweyu, Standard]

On the creation of 70 new constituencies, the BBI secretariat argues the judges usurped the people’s power since it is only the public that could agree to the proposal by approving or rejecting it through a referendum.

According to Raila and the BBI secretariat, the Appeal Court ignored evidence on public participation, including the collection of over one million signatures, to support the initiative. “We will also demonstrate that the judges erred in finding that each referendum question should be drafted separately as this will make constitutional making process impossible,” said Mwangi.

The IEBC, in its submissions filed through lawyer Eric Gumbo, has raised three issues it wants the Supreme Court to determine.

IEBC says the Appeal Court got it wrong when it held that the commission had no quorum to transact business at the time they approved the BBI for a referendum, their mandate in relation to public participation, and the nature of referendum questions.

Mr Gumbo says the court also erred in finding that the commission should have ensured the BBI promoters undertook public participation, stating that its role was only to facilitate the referendum process.

Both the Senate and National Assembly, in their support of the appeal, have argued that they properly debated the BBI referendum Bill and were satisfied that all due processes were followed before their approval.

Senate Speaker Ken Lusaka and National Assembly’s Justin Muturi said the Constitution has its own in-built mechanisms to restrain amendments without subjecting it to the rigid requirements of basic principle doctrines as applied by the Court of Appeal.

“The finding by the Appellate Court that certain provisions of the constitution are unamendable denies Kenyans a chance to exercise the very right that the Constitution entrusts them with. It has the effect of overthrowing the Constitution in itself,” the speakers said.

They said the judges failed to interpret the Constitution on the question of public participation given both houses were involved after the BBI secretariat went around the country to collect public views.

With the battle lines drawn after the parties filed their written submissions, it will be time for the leading lawyers to showcase their prowess when the hearing begins.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021