BBI was meant to help politicians get posts, parties tell top court in final submissions


Mohamed Nyaoga (left), who is one of President Uhuru Kenyatta lawyers talks to lawyer Eric Gumbo at the Supreme court building on Thursday, January 20, 2022 during the third day of the hearing of the BBI appeal case. [Collins Kweyu, Standard]

Civil society groups continued their onslaught against the Building Bridges Initiative (BBI) with a plea to the Supreme Court to stop political greed of creating positions through constitutional amendments.

Muslims for Human Rights (Muhuri), Kituo Cha Sheria and several activists urged the apex court to seal BBI’s fate by upholding the Court of Appeal decision that declared the constitutional amendment process illegal, null and void.

John Khaminwa, who was representing the civil society groups, argued that BBI was a bad product of greedy politicians who only think of changing the Constitution to create positions for themselves.

“We have been extremely unfortunate as a country to have very poor politicians with nothing to admire about them. They only think of amending the Constitution when as a country we need creative minds that can come up with great ideas to run the country,” Dr Khaminwa told the judges.

He submitted that the Constitution was deliberately made difficult to change and that if the court allowed piecemeal amendments as proposed in BBI, then Kenyans would end up with a mongrel constitution.

Another lawyer, Prof Elisha Ongoya, urged the court not to sweep aside the reasoned judgments of both the High Court and the Court of Appeal by allowing the appeals by the Attorney General and the Independent Electoral and Boundaries Commission (IEBC).

Prof Ongoya told the judges that the two courts correctly evaluated the evidence and came to the conclusion that there was no public participation to prove that the BBI push was a popular initiative.

“The decision declaring the BBI as unconstitutional was a product of a dozen judges, both from the High Court and the Court of Appeal. You cannot just overturn their decision by the stroke of a pen,” Ongoya told the court.

On the creation of 70 new constituencies, he submitted that the Court of Appeal was right in declaring it unconstitutional since one cannot predetermine the distribution of new constituencies without involving the electoral commission.

Muhuri’s lawyer, Caroline Kituku, submitted that in the absence of a legal framework to govern a referendum, the Court of Appeal was right in upholding the High Court decision that IEBC could not proceed to approve the BBI without the legal framework.

“It is important to note that even the IEBC has not challenged the finding that they lacked a legal framework to conduct the referendum. It is our plea that you uphold the declaration stopping the commission from proceeding with referendum without a legal framework,” she said.

She also implored the judges to find that the electoral commission was not properly constituted to verify the BBI signatures and that any consequential decision they made regarding the planned referendum was illegal.

She blamed the commission for bungling the push to amend the Constitution when they failed to ensure that there was sufficient public participation by providing a platform where people could verify and authenticate signatures for BBI campaign.

“Instead of 22 days, IEBC gave the public five days to verify their signatures, which were insufficient and unreliable since it was done online. It is why we are urging you not to disturb the permanent order issued by the Court of Appeal barring the commission from conducting a referendum,” she submitted.

Another lawyer, Evans Ogada, dismissed the AG’s contention that creation of new constituencies was meant to enhance equality in representation. He argued that the proposal failed to consider other regions of Kenya and the Court of Appeal was right in declaring it unconstitutional.

Ogada asked the judges to rise above the pressure to reinstate the BBI constitutional amendment push, stating that all the country wants is the assurance that the court is beyond any reproach.

“The judge under the 2010 Constitution is a lion, go forth and roar. Roar, that every corner of this country can feel your roar. We urge you to dismiss all the appeals and affirm that the BBI process was unconstitutional,” said Ogada.

When questioned by the judges on whether the Constitution provides four consequential processes of amendment as ruled by the Court of Appeal, the anti-BBI team conceded that the Constitution does not provide the sequences but that they should be applicable to the process.

Both the High Court and the Court of Appeal had declared that the Constitution can only be amended through four sequential processes of civic education, public participation, constituent assembly debate and referendum.

Properly constituted

When the judges sought to know what would happen to decisions made and by-elections conducted by IEBC at the time it lacked quorum, Kituku submitted that the declaration that IEBC was not properly constituted does not apply to the other functions.

“The judgement was delivered after IEBC had performed those functions. Therefore, the positions cannot change. It can only change if a party aggrieved by those decisions comes to court to challenge them,” said Kituku.

The lawyers concluded that it will be absurd for the Supreme Court to overlook the illegalities committed by President Uhuru Kenyatta in his involvement in the BBI process and overturn the Court of Appeal decision.

The three-day hearings came to an end yesterday and the judges will now proceed to prepare their rulings. Whichever way the verdict goes will have far-reaching implications on Kenya’s politics besides offering a framework for how future referendums should be conducted.

From the start, the case promised both heat and light, with lawyers from both sides presenting compelling arguments to back their respective positions; but there were also light moments that spiced up the otherwise somber proceedings.