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Which way BBI? The big battle starts

By Paul Ogemba | June 29th 2021
Court of Appeal president Daniel Musinga. [File, Standard]

The stage is set, the players have taken their positions and the referees are at hand to determine what could be the mother of all court battles this year.

That is the case of the Building Bridges Initiative (BBI) set to start today at the Court of Appeal, with all eyes on the seven appellate judges who will determine whether the country will proceed to a referendum or uphold an earlier High Court decision that scuttled the process.

For the next four days, Kenyans will be treated to high octane legal arguments similar to what was witnessed during the presidential election petitions at the Supreme Court in 2013 and 2017 when ODM leader Raila Odinga challenged President Uhuru Kenyatta’s victory.

Just like the presidential election petitions, the BBI appeal has drawn the crème de la crème in the legal profession, with senior counsel expected to square it out with young enterprising lawyers spoiling for a fight.

But unlike in the presidential election petitions, the two former political foes turned friends, courtesy of the March 2018 handshake, have assembled one team to save their BBI Constitutional Amendment Bill pet project.

The appeal emanated from a decision by High Court Judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka on May 13 declaring that the BBI process was illegal, unconstitutional, null and void.

Their decision came when the BBI Constitutional Amendment Bill (2020) had passed all the hurdles in County Assemblies, National Assembly and Senate and was headed for a referendum.

“Any step taken to amend the constitution through the BBI is null and void and cannot be subjected to any referendum. The court issues a permanent injunction stopping the electoral commission from proceeding to organise any referendum for the Bill,” read the High Court judgement at the time.

It is the decision that jolted President Kenyatta, Raila, the Independent Electoral and Boundaries Commission(IEBC), Attorney General Kihara Kariuki and the BBI Secretariat into action, leading to the appeals.

With the high political and public stake in the BBI outcome, the Court of Appeal has also not disappointed by choosing a mix of tough and battle-hardened judges with many years of experience on the bench, and who have handled some of the landmark cases in the country.

The seven-judge bench will be presided over by Court of Appeal president Daniel Musinga alongside Justices Roseline Nambuye, Hannah Okwengu, Gatembu Kairu, Patrick Kiage, Fatuma Sichale and Francis Tuiyot.

As one of those most hit by the High Court decision, President Kenyatta assembled a team of top lawyers led by Senior Counsel Gatonye Waweru, Mohammed Nyaoga, Desterio Oyatsi and Tom Macharia.

The judges found that the president had violated the constitution by initiating the constitutional amendments through the BBI, and that he can be personally sued in any civil court case.

The president, in his appeal, argues that he was condemned unheard, and that the High Court judges got it wrong in his role during the BBI constitutional amendment process.

He raised 17 issues in his grounds of appeal, arguing that the judges failed to appreciate the scope and extent of the constitutional doctrine of presidential immunity and went ahead to determine issues that had already been determined by other courts.

In his defence of the BBI, the president submitted that the High Court finding that he is prohibited from supporting a popular initiative to amend the constitution was premised on wrong interpretation of the supreme law, which amounted to denial of his right as a Kenyan citizen.

“The finding that the president breached the constitution by supporting BBI is not based on a contextual and harmonious interpretation of the constitution and amounts to denying him his right as an ordinary Kenyan citizen. It has no basis and should be set aside,” said Gatonye.

Raila and the BBI secretariat have filed a joint appeal in which they raise 16 grounds, arguing that the High Court judges usurped the sovereign power of the people of Kenya and declared themselves the only critical decision maker of what can or cannot be amended in the constitution.

The team is led by Siaya Senator James Orengo, lawyer Paul Mwangi, Prof Ben Sihanya, Jackson Awele and Arnold Oginga.

According to the ODM leader, the High Court judges got it wrong on the role of promoter and initiator of a popular initiative to amend the constitution, and that they were wrong to fault the president for being part of the initiative.

“The constitution does not expressly define who may promote a constitutional amendment process. The right to start the initiative is open to any person. There is no evidence that promoters of constitutional change are a preserve of ordinary citizens to the exclusion of others,” argues their team.

Attorney General Kihara Kariuki has settled on Senior Counsel George Oraro to lead his team alongside Solicitor-General Kennedy Ogeto, lawyers Paul Nyamodi and Kamau Karori.

In his appeal, the AG argues that the judges made a mistake by declaring that the president can be sued in his personal capacity, and that some sections of the constitution cannot be amended.

According to the AG, the judges ignored the critical peace making process initiated by President Kenyatta and Raila after the 2017 election, which led to the BBI Constitutional Amendment process.

“The judges erred 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,” said the AG.

Former AG Githu Muigai is leading the IEBC team assisted by lawyer Eric Gumbo. They have framed four main grounds in the appeal, arguing that the judges got it wrong on the findings on its quorum, voter registration, verification of signatures and public participation.

The commission argues that it followed due process in verifying the BBI signatures and that the number of people who signed to support the initiative was proof of sufficient public participation.

Having celebrated their victory at the High Court, the tables have turned and it is time for the eight individuals and organisations to defend and respond to the appeals filed by Uhuru, Raila, AG and IEBC.

Leading the High Court defence will be economist David Ndii, activist Tabitha Seii, James Gondi, Wanjiru Gikonyo, Isaac Aluochier, Thirdway Alliance’s chairman Miruru Waweru, Kenya National Union of Nurses and the Kenya Human Rights Commission.

Dr John Khaminwa, who represents KHRC, will be leading the opposing sides alongside Law Society of Kenya president Nelson Havi. Others are Elias Mutuma, Dudley Ochiel, Morara Omoke and Michael Karanja.

At the start of the hearings, the judges will first determine whether to allow Prof Charles Manga and Prof Migai Akech to be joined as amicus curiae.

Meanwhile, Judges Hannah Okwengu, Patrick Kiage and Francis Tuiyot dismissed an application by lawyer Charles Kanjama to be enjoined in the BBI appeal, ruling that he cannot be joined as a party in the main appeal when he was not a party at the High Court.

“The issues he raised in his appeal touches on substantive appeal in which he was not a party at the High Court. The court had declined to allow him participate and he cannot purport to go around arguing issues which he was denied a chance to present at the High Court,” ruled the judges.

They, however, allowed the lawyer to file an appeal to challenge failure by the High Court judges to give him reasons for declining to admit him as a party when they were handling the case.

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