AG in court of Appeal over BBI, accuses High Court judges of bias
By Kamau Muthoni
| May 22nd 2021
Attorney-General Kihara Kariuki has filed an appeal challenging High Court’s judgement on Building Bridges Imitative (BBI).
Justice Kihara in his appeal, seeking to set aside the verdict by five High Court judges argues that they erred by declaring that President Uhuru Kenyatta can be sued in person.
At the same time, he faults the court for finding that some sections of the Constitution cannot be amended.
He accuses Justices Joel Ngugi, George Odunga, Teresiah Matheka, Jairus Ngaah and Chacha Mwita of bias and ignoring Kenya’s history on Constitution-making.
According to Kihara, the verdict by the High Court is a recipe for chaos adding that they ignored the peace process that culminated in a push for Constitution amendment.
“The learned Judges of the High Court erred in law and in fact in making a finding that the President was engaged in a mission that was not only clearly in violation of the Constitution but also destructive to the nation, without appreciation of the background, legitimate historical context and the policy justification for the initiative,” he argues.
The AG is also aggrieved that the five-judge bench found that President Uhuru has breached Chapter Six of the Constitution. He argues that if the High Court’s verdict is allowed to stand, the President, the presidency would be open to a multiplicity of legal proceedings thus impairing the performance of his functions.
He argues that the court conferred itself powers meant for Parliament and independent commissions. According to him, the court set grounds for any person to initiate legal action against the Head of State without evidence that he had acted against the law.
The AG says will prove to the Court of Appeal that the judges made a mistake in indicting the President when there was another judgment by Justice John Mativo and which cleared his participation.
He also cites the participation of the former Prime Minister who is not part of government but was one of the main drivers of the BBI process, with the President appearing occasionally to drum up his support for the initiative.
He argues, “The learned Judges of the High Court erred in law and in fact in holding that H.E the President has contravened chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change without reference to any evidence on record and contrary to the doctrine of separation of powers thereby usurping the role of independent commissions and Parliament in determining questions on violations of Chapter 6.
The five judges found that it would be impractical for the country to wait for the tenure of a President to hold him accountable. They were of the view that that the President or any other person holding that office is only protected from such actions in respect of anything done or not done in the exercise of their powers under this Constitution.
“Assuming, in his tenure, the President embarks on a mission that is not only clearly in violation of the Constitution but is also destructive to the nation, would it not be prudent that he should be stopped in his tracks rather than wait until the lapse of his tenure by which time the country may have tipped over the cliff?” they paused
He accuses the judges of engaging in an academic exercise as the challenge on the case seeks to block amendment of key sections of the Constitution, among them section on bill of rights.
In the High Court, Economist David Ndii and activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei lodged the first case. The petitioners claim the country is now steering into uncharted waters, driven by few political bigwigs instead of a wave of change by Kenyans which is similar to the quest to do away with the 1969 Constitution.
The petitioners through lawyer Nelson Havi, asked 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 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.
At the same time, Chapter four accords Kenyans rights, Chapter nine is about the Executive, and 10 defines the Judiciary.
The crux of the case was that subjecting changes to the four clauses will result in a complete change of the entire law.
But the AG has a different view. He argues that the will of the people supersede the court. He says the decree by the court is foreign and has never been applied in Kenya.
“In arriving at the decision that the basic structure is a valid constitutional principle, the Learned Court exhibited bias and thereby placed undue weight on limited academic writings that support the basic structure doctrine but did not give sufficient consideration to overwhelming academic writings that opine that the doctrine is not a universal – constitutional principle and consequently courts should approach the same with caution; and failed to duly weigh comparative cases that support the doctrine with those that either reject the doctrine or urge that it should be approached with caution,” he continued.
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