Do not sanitise illegal BBI Bill process, parties plead with court


A section of anti-BBI lawyers from left to right: Elias Mutuma, Morara Omoke, Caroline Cherono and Muthoni Nyuguto outside the Supreme Court building on Friday, August 20, 2021 during the ruling of the BBI appeal case. [Collins Kweyu, Standard]

Opponents of the Building Bridges Initiative have asked the Supreme Court not to sanitise an illegal process to amend the Constitution by overturning the decisions that nullified the process.

Thirdway Alliance and lawyer Morara Omoke, who were among the parties that ignited the BBI storm by challenging the process at the High Court, argued that the initiative was an illegality from its inception and cannot be allowed to proceed as suggested by Attorney General Kihara Kariuki.

Lawyer Elias Mutuma, for Thirdway Alliance, argued that BBI proposed irreconcilable clauses that would claw back the gains of the current Constitution, and change the entire governance system without the people’s participation.

“A rose by any other name shall still smell as sweet and a skunk by any other name shall still smell as bad. Just as the Court of Appeal found that the BBI was a skunk, we are urging you to find that it is bad and throw it out,” said Mutuma.

According to Mutuma, BBI was branded as a popular initiative when in reality it was a presidential initiative that cannot be subjected to a referendum.

He argued that the Court of Appeal and the High Court were right in holding that the president is expressly prohibited from amending the Constitution and that the process is reserved for citizens who can do it directly or through parliament.

Mutuma told the apex court that if the Attorney General and BBI proponents believe that there is nothing wrong with president initiating the process, then they must tell the court where he derives that power.

“The president cannot seek refuge under the Constitution to purport to exercise executive authority to change the Constitution. His executive authority is to govern and not legislate, and if he was to be allowed, then he will be going against the doctrine of separation of powers,” said Mutuma.

On claims that the High Court and the Court of Appeal went beyond the Constitution to stop the BBI referendum, Mutuma said the judges were justified to seek reference in other jurisdictions to set the four sequential orders required to change the Constitution.

Mutuma told the court that there was no public participation in the BBI process, and that the people were going to be subjected to vote for a Bill which they had no knowledge of its contents.

“It is wrong for the BBI proponents to say that what matters is having the one million signatures. There must have been content deliberations where the issues are brought before the public with a view to have them understand the contents,” said Mutuma.

He added that it was wrong to say that people would have opportunity to approve or reject the proposal at the referendum, and that the Court of Appeal was right in declaring the Bill unconstitutional for lack of public participation.

Mutuma further faulted the electoral commission for stating that they had no role in ensuring BBI promoters complied with dictates of public participation, arguing that they had the mandate to ensure the public are properly enlightened before appending their signatures.

“IEBC has the duty to ensure there is public participation. They cannot run away from their duty when there is evidence they received the referendum Bill and even issued a template to the promoters for collecting signatures,” said Mutuma.

Caroline Jerono, on her part, argued that the issue of multiple referendum questions was well settled by the Court of Appeal; that we cannot have an omnibus Bill presented to the people to vote for.

Mr Omoke, in his submissions, argued that the Constitution indeed had a basic structure and that the Court of Appeal was right in declaring that it cannot be amended without the four sequential processes of civic education, public participation, constituent assembly debate and referendum.

Omoke told the Supreme Court that the president cannot run away from his footprints and disown the BBI process when he was the initiator and participated in every stage using public resources.

“But even if the president was not the promoter, the other promoters Junet Mohamed and Dennis Waweru were still state officers and had no power to initiate the amendments. This court has the power to look at our constitutional history and dismiss the appeals by the AG,” said Omoke.

He added that the current Constitution was only 11 years old, with children born at the time it was promulgated not yet able to enjoy it, which makes it absurd for the BBI team to seek to amend it instead of implementing all its provisions.

Omoke and his partner Tokua Lesinko said amending the Constitution should be a bottom-up approach initiated by the people and not a top-down process initiated by the president and other political leaders.

On the issue of IEBC quorum, the lawyers stated that the Court of Appeal was right in finding that the commission lacked the required numbers to transact business and approve the BBI initiative.

“IEBC seems to be misinterpreting the Constitution when it comes to their quorum. What the Constitution says is its composition, which is a minimum of three commissioners but to transact business, they must be at least five commissioners,” said Omoke.

Mr Isaac Aluochier in his submissions, however, said IEBC was just a victim of circumstances and should not have been punished for having three commissioners at the time of approving the BBI Bill.