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Legal hurdles that risk derailing push for BBI referendum

By Kamau Muthoni and Paul Ogemba | December 6th 2020

From left: Linda Katiba lobby group led by Narc Kenya party leader Martha Karua, economist David Ndii and activist Boniface Mwangi address a press conference on BBI report in Nairobi. [David Njaaga, Standard]

Behind the public glare, a silent legal battle is being waged to stop the proposed amendment of the Constitution of Kenya through the Building Bridges Initiative.

The Sunday Standard counted at least five cases pending before the Supreme Court and the High Court, whose end result could keep the reggae playing, pause the tune or stop it altogether.

But the proponents of the initiative, which had by Friday collected five million signatures to endorse the Constitution of Kenya (Amendment) Bill 2020 ahead of verification and onward transmission to the Independent Electoral and Boundaries Commission (IEBC), are confident that the courts cannot injunct a popular initiative.

Yesterday, BBI steering committee co-chair Dennis Waweru said he was optimistic that nothing would derail the process.

Saying they are ready to defend the process thus far, Mr Waweru hoped the courts will prioritise the cases so as not to delay the BBI push.

“We are not blind to what is happening. We have come a long way as a country. We believe the Judiciary is part of us, and are aware we are carrying the aspirations and wishes of millions of Kenyans,” he said.

The latest litigant to fire their salvo was Thirdway Alliance, which on Friday went to court claiming that the initiative was government-sponsored and should not follow the popular initiative route to a referendum.

The party filed an urgent constitutional petition at the High Court challenging legality of the amendment Bill 2020, and asked the court to stop the process pending hearing and determination of the suit.

Through lawyer Elias Mutuma, it was aggrieved by the use of the state machinery to collect signatures. It also faulted the seven-day period given by the BBI proponents for signature collection, saying it was not sufficient time for Kenyans to read and understand what they were endorsing.

“The Bill is government-sponsored and not a citizen-driven constitutional amendment that would qualify as a popular initiative. It was not flagged by the citizens as envisaged in Article 257 of the Constitution and should not be subjected to a referendum,” said Mr Mutuma.

Thirdway Alliance argues that the BBI initiative was a political truce between President Uhuru Kenyatta and ODM leader Raila Odinga that should not be used as a basis to make changes to the Constitution.

Further, it wants the BBI secretariat restrained from presenting signatures to IEBC for verification and in the event that they are presented, the court should stop the commission from presenting the Bill to the 47 county assemblies for debate.

“The use of government machinery, state resources and coercion of state officers including Cabinet secretaries, county commissioners, chiefs and heads of state agencies to collect signatures was a clear demonstration of forcing the constitutional amendment on Kenyans,” said Mutuma.

The party also claimed that IEBC does not have a database for specimen signatures of each of the registered voters in Kenya, therefore lacks the capacity to verify and approve the signatures submitted to it by the BBI steering committee.

Blatant compromise

The party is seeking a court declaration that the BBI process culminating in the launch of the Bill was unconstitutional. 

Economist David Ndii and activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei have filed another case at the High Court, which argues that the country is steering towards uncharted waters, driven by a few political bigwigs instead of a wave of change by Kenyans similar to the quest to do away with the 1969 Constitution.

The petitioners, through lawyer Nelson Havi, want the court to stop the process by declaring four chapters of the 2010 Constitution -- Chapter One, Two, Four, Nine and 10 -- form the foundation of the country and cannot be altered or changed through amendments, either through Parliament or a popular initiative.

Chapter One deals with the sovereignty of the people and the supremacy of the Constitution while the Chapter Two declares Kenya as a republic, defines its territory, national values, language, culture and devolution.

Chapter Four accords Kenyans rights, while Chapter Nine is about the Executive and Chapter 10 defines the Judiciary.

In the case, where the Attorney General Kihara Kariuki, IEBC, speakers of the National Assembly and Senate are listed as respondents, the petitioners want the court to declare that Chapters One, Two, Four, Nine and 10 cannot be amended either by Parliament or through popular initiative.

The petitioners, however, admit that there is no law which bars politicians from changing the Constitution and assert that such changes are limited to seal errors and gaps seen in it.

Nandi and Kericho county assemblies want the Supreme Court to advise whether Members of County Assemblies (MCAs) can amend the Bill sent to them for approval.

In a scenario where Kenya’s highest court agrees that the Bill ought to be passed by members who are not less than two thirds, then MCAs will be kings and queens in the process as their respective parties ought to whip them to attain the numbers required.

The assemblies also want the Supreme Court to advise whether MCAs ought to seek views of the electorate as part of public participation and incorporate the same.

Another issue raised by Kericho and Nandi assemblies is whether Kenyans should decide on the entire document, in an instance where it contains some issues that need a referendum and some that do not.

In the advisory opinion request filed through the law firm of Ongoya and Wambola Advocates, the assemblies also want the court to advise if IEBC ought to give Kenyans a referendum document with single or multiple questions.

From Makueni, Governor Kivutha Kibwana wants the highest court in the land to decide whether or not the national or county governments can steer a constitutional amendment through a popular initiative.

“I am apprehensive, based on my training in law and governance and my own conscience as a citizen, that in the manner which the BBI has been undertaken, it runs counter to the requirement of the Constitution,” he says.

Joint secretary of the Building Bridges Initiative Paul Mwangi said it was worrying that some senior judicial officers had made comments that could influence the case.

“The opponents of BBI are viewing the Judiciary as an ally and interested party, and therefore are enjoying philosophical parity. They are hoping that in their self interest, the courts can play in their favour,” said Mr Mwangi.

Mwangi said the war on BBI had increasingly moved from the public to the courts because its critics realised that the judiciary is not comfortable with the office of the Ombudsman as proposed in the Bill.

Jubilee Vice Chairman David Murathe said those opposed to the document were out to frustrate the process. “You cannot injunct a popular initiative. We are now done with the signatures and moving on to the verification stage. Everything is going as planned,” said Mr Murathe.

Homa Bay Woman Representative Gladys Wanga described those who have gone to court as busybodies trying to use technicalities to derail the process. “I think if you look at the basis for their litigation, they are basically people splitting hairs. Their motive is to derail the process on technicalities”.

- Additional reporting by Jacob Ngetich and Moses Nyamori

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