Judges refuse to be drawn into Uhuru fight with the Judiciary

Court of appeal Judges Hannah Okwengu, Daniel Musinga and Roseline Nambuye at the Supreme court building on June 2, 2021, during the mention of the BBI case appeal.[Collins Kweyu,Standard]


The Court of Appeal has refused to be drawn into President Uhuru Kenyatta’s fight with the Judiciary as judges began hearing appeals on the Building Bridges Initiative (BBI) to amend the Constitution.

At the same time, the Independent Electoral and Boundaries Commission (IEBC) got a reprieve after the appellate court suspended the High Court orders so as to give the poll agency leeway to plan for by-elections. The court, however, prohibited IEBC from conducting a referendum.  

Appellate judges Daniel Musinga, Roseline Nambuye and Hannah Okwengu declined an invitation by one of the parties to censure President Kenyatta over his remarks during Madaraka Day celebrations on Tuesday castigating the Judiciary.

“We don’t want to say much on the issue but let us be civil, respect one another and realise that we have a judicial duty that must be handled in a sober manner. Let us allow the court to make a proper decision without unnecessary attacks and comments by the parties concerned,” said Justice Musinga.

President Kenyatta, in his speech during the 58th Madaraka Day celebrations in Kisumu on Tuesday, accused the Judiciary of usurping the will of the people by stopping the BBI process.

Lawyer Dudley Ochiel, who represents one of the parties in the BBI case, told the judges the president’s remarks amounted to contempt of court since he is a party to the proceedings and should not make comments outside the court.

The judges declined to allow the other lawyers representing the various parties to comment on the issue.

This came as the appellate court set directions on hearing appeals against the High Court judgement that declared the BBI Constitutional Amendment process illegal and unconstitutional.

Justices Musinga, Nambuye and Okwengu first saved the IEBC from a crisis when they suspended part of the High Court judgement that found that the commission was not properly constituted to conduct business.

“We grant an interim order suspending execution of the pronouncement that IEBC is not properly constituted and has no quorum to conduct its business,” ruled the judges.

They, however, stated that the order was only limited to allowing IEBC to continue discharging its statutory mandate, including organising by-elections, but stopped the poll agency from proceeding to organise a referendum, which is one of the contentions in the BBI case.

In the High Court decision, Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka declared that IEBC does not have quorum to carry out its business relating to the conduct of the proposed referendum and verification of signatures.

They also ruled that the BBI Constitution of Kenya Amendment Bill, 2020, cannot be subjected to a referendum before IEBC carries out nationwide voter registration.

IEBC lawyers Githu Muigai and Eric Gumbo told the appellate court that if the orders were not lifted, it would interfere with the commission’s work, including procuring materials for elections and carrying out its administrative duties.

The appellate judges directed the four appeals filed by IEBC, Attorney General, President Kenyatta, the BBI Secretariat and ODM leader Raila Odinga be consolidated and fast-tracked.

The judges ruled the consolidated appeal be heard from June 29 to July 2 and the bench be expanded to seven judges.

“Each party will be given two hours to argue its case before the seven judges in an open court. They must also limit their written submissions to 40 pages each and have them filed within the time allocated,” ruled Musinga.

The appellants were given seven days to file their submissions while the respondents, who were the petitioners at the High Court, were granted 14 days to file their responses and submissions before the hearings commence.

As the battle for the BBI plays out at the Court of Appeal, focus will be on politicians who have been drumming up support for the constitutional changes before next year’s General Election.

It will be a race against time for the lawyers with the stakes quite high in the anticipated political formations and realignments ahead of the August 2022 elections with the proposed expanded executive in the BBI that was expected to accommodate more political coalitions.

Creation of 70 additional constituencies and increase of county allocation from 15 per cent to 35 per cent of the national revenue have also made the BBI appeal a matter of urgency that needs to be determined inorder to pave way for a referendum before the elections.

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