BBI office files appeal, raises 16 key issues

ODM Leader Raila Odinga. [Courtesy]

Orange Democratic Movement Leader Raila Odinga has launched his fight for the Building Bridges Initiative (BBI) by seeking to suspend the High Court order that stopped a constitutional referendum.

Raila and the BBI Secretariat have raised 16 key issues to challenge the decision by the five High Court judges that stopped the constitutional amendment process, key being that the judges usurped the wishes of millions of Kenyans who are yearning for constitutional changes.

In the application before the Court of Appeal filed by lawyer Paul Mwangi, the former Prime Minister wants the Appellate Court to suspend the order that stopped the Independent Electoral and Boundaries Commission (IEBC) from conducting the referendum and allow the process to conclude.

“A constitutional amendment process vide a popular initiative is an intensive process involving strict timelines and it is in the interest of justice that the court strike a balance to ensure that the process is back on truck,” said Mwangi.

Raila and the BBI Secretariat join the Attorney General and the IEBC who have also filed separate appeals against the High Court decision.

According to the appellants, High Court Judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka usurped the sovereign power of the people of Kenya and declared themselves the critical decision maker of what can or cannot be amended in the constitution.

Odinga argued that the judges stopped a non-existent initiative because the BBI steering committee for the implementation of the BBI Taskforce Report ceased to be existent in June 2020 and was, therefore, incapable of promoting a drive to amend the Constitution.

Three million supporters

The ODM leader and the BBI secretariat accused the High Court of deliberately ignoring evidence presented to it of the approval executed by over three million supporters of the popular initiative who all declared that they had read and understood the Constitution of Kenya Amendment Bill.

They added that the court ignored the evidence that it was not President Uhuru Kenyatta who was the promoter of the BBI initiative to amend the Constitution since it was spearheaded by a separate secretariat.

“They failed to take note of the evidence that the BBI Constitutional Amendment process was initiated by Junet Mohamed and Dennis Waweru as co-chairs of the BBI secretariat and supported by more than three million registered voters,” said Mwangi.

Further, they have accused the five judges of dismissing without giving any reason their explanation of previous High Court decisions on the issue of IEBC quorum, validity of the BBI process and immunity of the president.

Mwangi argued that the appeal is of great public interest given the benefits it would reap once the referendum is passed.

“The judges erred by declaring that civic education is a substantive condition before amendment of the constitution through a popular initiative and unlawfully imposed an alien concept of public participation which limit people’s power in making a decision,” said Mwangi.

He added that the judges failed to correctly state who can initiate a popular constitutional amendment process.

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