AG wants findings of two lower courts thrown out for sake of future generations

Solicitor General Ken Ogeto at the Supreme Court on Tuesday, January 18, 2022 during the commencement of the hearing of the BBI appeal case.[Collins Kweyu, Standard]

Attorney General Kihara Kariuki leveraged on the split between judges on key issues in the Building Bridges Initiative (BBI) case to attack the findings by the High Court and Court of Appeal.

In well-calculated strokes of wit, handed in a relay by a battery of lawyers led by Solicitor General Ken Ogeto, the AG painted a picture of contradictions, confusion and anxiety caused by the two lower courts.

He questioned their interpretation on whether the Constitution can be amended or not, warning that Kenya will sit on legal landmines if the Supreme Court does not intervene.

In his maiden argument before Chief Justice Martha Koome, Deputy CJ Philomena Mwilu and Justices Mohamed Ibrahim, Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala, Isaack Lenaona and William Ouko, Ogeto said: “Our singular desire is that the lingering legal and constitutional questions in this appeal be determined and settled by the highest court in our land, not just for today but also, and perhaps more importantly, for posterity”.

The AG’s team raised three questions for the Supreme Court to rule on.

They first asked the court to determine whether the ‘basic structure’ doctrine applies in Kenya. Ogeto asserted that the 2010 Constitution can be amended. According to him, even High Court and Court of Appeal judges could not agree on what can be amended and what cannot.

He said on May 13, 2021, High Court Justices Joel Ngugi, Jairus Ngaah, Teresiah Matheka, George Odunga and Chacha Mwita ruled that basic structure should be determined on a case-to-case basis. But, he noted, Court of Appeal judges were divided. He said that Justice Hannah Okwengu said that basic structure is “in the Constitution and what it contains”.

Ogeto also cited Justice Patrick Kiage, who found that basic structure either coincides or nearly coincides with Article 255 of the Constitution. The solicitor added that Justices Gatembu Kairu and Justice Francis Tuiyott were certain in their respective judgements that Article 255 of the Constitution outlines the basic structure of the Constitution.

“Even if the Basic Structure Doctrine was applicable in Kenya (which we dispute), the absence of clarity on what the basic structure is, would create much legal and constitutional difficulty. This is a matter that we humbly urge this court to clarify with finality,” he argued.

The second issue was whether President Uhuru Kenyatta could only push for amendments though Parliament and not through a popular initiative.

He said the lower courts could not agree on this. In his view, Court of Appeal president Daniel Musinga, Kairu and Nambuye were of the view that a president can only use the parliamentary route, through the AG. On the other hand, Justice Kiage held that a President cannot be a part of changing the Constitution.

According to the AG, Justices Hannah Okwengu, Fatuma Sichale and Francis Tuiyott were silent on this.

Okwengu said: “This absence of clarity, My Lords and My Ladies, is clearly problematic.”

The other issue raised by the AG was whether a president can be sued for his actions or inactions while in office.

On this, his lawyers said the problem was that for one to determine what a president had done or not done, it would require the president to be summoned or appear in court.

Senior Counsel George Oraro and lawyer Kamau Karori were of the view that dragging a president to court would breache separation of powers yet one arm of government is not a subject of or inferior to another.

The problem that the lawyers cited is the aftermath of an inquiry on the actions or inactions of a president during his tenure. The highest court in the land heard that the lower courts had no answer for this.

“What would happen if a finding of liability is made during the time the President is in office? Can the court then issue, for example, warrants against the President? Can attachment be undertaken against the property of the President?”one of the lawyers asked.