Why BBI promoters must be wary of the legal hurdles ahead

President Uhuru Kenyatta addressing Kiamaiko residents. [Jonah Onyango, Standard]

That the reggae dance could meet serious legal headwinds became clear last week with the High Court’s decision on interlocutory issues in the consolidated petition now popularly known as David Ndii and Others Vs IEBC and Others.

The principal thrust of the petition are prayers to the court to invalidate the BBI process because of its procedural defects, primarily lack of public participation and lack of a legislative framework to guide the process, especially in the county assemblies.

It is unfortunate that Parliament has not passed a referendum law which would have answered many of the issues raised in the petition. At a substantive level the court is also being asked to invalidate the proposed constitutional amendment because it seeks to adjust the basic doctrine of the constitution which the petitioners allege cannot be effected through an amendment process.

The main hearing of the case is slated for next month.

In the meantime, the court gave a ruling on some interim prayers which send a warning shot to the BBI promoters on the possible delays that can be occasioned by the litigation.

In the application for conservatory orders to stop the BBI process pending the hearing of the main suit, the petitioners had argued that if the process is allowed to go on, it would make most of the prayers sought in the case irrelevant as the same would have been overtaken by events.

Furthermore, it was argued that the country risked losing substantial amounts of money if the amendment process proceeded or was concluded and the same was then invalidated by the court. In its ruling on these issues last week, the court refused to stop the process in the county assemblies and Parliament.

In the court’s opinion, the legislative process in these two fora would not result in any additional usage of public monies and therefore the argument about loss of public funds was not sustainable.

However, while allowing the process to be continued in the county assemblies and Parliament, the court repeated, rather forcefully, its overriding powers to declare an amendment emanating from a flawed process unconstitutional even after its passage by these legislative assemblies. While the court allowed the process in the county assemblies and Parliament to proceed, it granted conservatory orders stopping the IEBC from proceeding with a referendum, even if the Bill successfully passed the county assemblies and Parliament.

The court agreed with the petitioners that subjecting the amendment to the referendum risked the loss of billions of shillings if the court then declared the process unconstitutional.

This decision should worry the promoters of the BBI because it has capacity to slow down the momentum of the process if the court takes long to make a decision or if the decision made is against the process.

The main hearing of the petition is on 17th -19th of March.

If the court makes a decision against the process in April, it will mean that until an appeal is heard, which would still take at least a month to process, the referendum cannot proceed even if Parliament clears the Bill. If the Court of Appeal finds against the process, only a favourable decision at the Supreme Court would restore the process.

Unfortunately, due to the complexity of the matter before the court, by time the matter is concluded in the Supreme Court, we would be heading to the end of the year, which is also the election year.

While one cannot anticipate what the High Court will rule, and the court was adamant that its interim decision had no bearing on its ultimate decision, the language in that decision reflects a possible finding in favour of the petitioners unless a very sound case is made by the team representing the BBI promoters.

One hopes that this team is giving the amount of intellectual investment the matter needs unlike in the past when in some cases pro-government legal teams tended to take cases lightly.

As reggae dance continues to trudge along, it must recognise the real possibility of judicial roadblocks that may slow, if not totally kill the jig.

-The writer is an advocate of the High Court of Kenya

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

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BBI BBI Reggae