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Pro-BBI team is confident Court of Appeal will rule in their favour

By Moses Nyamori | June 28th 2021
BBI Secretariat and a section of Jubilee Party and ODM MPs at the Secretariat offices along State House Road, Nairobi. [Samson Wire, Standard]

Proponents of the Building Bridges Initiative (BBI) have expressed confidence that the Court of Appeal will rule in their favour and pave way for the referendum.

Hearing of the matter in the Court of Appeal is set to begin tomorrow and run until Friday.

BBI Secretariat said yesterday they have a solid case and hope that the higher court will overturn the decision of the High Court that declared BBI null and void.

The BBI Secretariat co-chair Junet Mohammed maintained that there was no basis to stop the country from holding a referendum to amend the 2010 Constitution.

“We expect justice and fairness to be done to us because we believe we have a good case. I don’t see any basis to stop us from having a referendum,” said Junet.

He warned leaders against politicising the matter, saying it should be left to the court to make an independent decision.

The Suna East MP claimed that opponents of the process have been taunting them to abandon the process despite the window of appeal.

“The courts are there to mitigate on what has happened in lower courts,” he said.

Legal challenge

The National Assembly Minority Whip said once they are done with the legal challenges, they will embark on the journey to a referendum.

“We are within our timelines. Once we are done with the legal matter, the next stage would be a referendum. Nothing stops us from holding a referendum and election within a year,” he said.

Suna East Mp Junet Mohamed (centre) at Parliament Buildings, Nairobi. March 30, 2021. [Elvis Ogina, Standard]

BBI Secretariat co-chair Dennis Waweru expressed optimism that reggae would soon be back.

“We are very optimistic and confident that we are going to have a favourable ruling,” said Mr Waweru.

He said they are not worried about the timelines since a proposal in the document has provided for when constituency boundaries review should be conducted.

“We are still okay in terms of the timelines. The document has waived the one-year requirement for boundaries review so we can have the referendum and still review the boundaries before the next polls,” said Waweru.

He explained that the constitututional review was meant to cure electoral challenges that the country faces every electoral cycle.

He said it would not make sense to postpone the process until after 2022 General Election. “The things we want to cure are electoral issues that is why it makes more sense why we should have it before the elections,” explained Waweru.

ODM chairman John Mbadi said pushing the plebiscite to next year would be akin to killing the process since it was not clear which team would be in office.

He argued that the law does not bar the country from holding a referendum and general election within a year.

“My expectations are that the courts will fast track it, prioritise and allocate it more time so that it is dispensed with since depending on the outcome, either party can still move to the supreme court,” said Mr Mbadi.

He added: “There is no law that condition a referendum at a particular time before the general election. Doing it after the polls will not give it the intended impact. Again you don’t know which team will be in place and whether they would be supportive of it.”

The case will be heard and determined by a seven-judge bench comprising of Court of Appeal President Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Partick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

ODM Chairman John Mbadi. [Elvis Ogina, Standard]

President Uhuru Kenyatta and ODM leader Raila Odinga have picked a legal team led by Attorney General Paul Kihara, Solicitor General Kennedy Ogeto, former BBI joint secretary Paul Mwangi and Senator James Orengo among other top legal minds.

Raila on Saturday said he was optimistic the team will successfully appeal the ruling by the High Court.

“We have a strong team of lawyers led by Senator James Orengo. We are confident that we will succeed and the BBI Bill will move forward,” said Raila, during the burial of former Gem MP Jakoyo Midiwo.

But in a recent interview, Deputy President William Ruto likened the push to amend the Constitution to an attempt to return the country to the dark days.

Dr Ruto said the country must resist attempts by those in power to amend the supreme law at will.

“The only parallel I can think of is 1982 when the law was repealed to turn Kenya into a single party state. BBI poses danger to the rule of law because we are setting a precedent that if you have State power, influence and money you can change the Constitution the way you want,” he said.

The DP warned that the country would be treading on dangerous ground if those in power use shortcuts to amend the Constitution to weaken other arms of government that they see as an impediment to their political quest.

“As things stand now, BBI is illegal, unconstitutional, it is null and void to the extent that the court has said. We must not set a precedent that you can change the Constitution using unconstitutional and unlawful means,” said Ruto.

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