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Public participation at core of BBI battle royale

By Betty Njeru | June 29th 2021
Court of Appeal Judges from left to right: Roseline Nambuye, Daniel Musinga and Hannah Okwengu at the Supreme Court building. [Collins Kweyu, Standard]

Public participation in the Building Bridges Initiative (BBI) process was at the centre of the hearing in court today.

Senior Counsel George Oraro questioned the criteria that High Court used, to decide that public participation was not duly followed, when shooting down the BBI in May this year.

One of the issues he laid out in President Uhuru’s appeal was public participation in the context of popular initiative.

Oraro argued that the public was indeed involved, saying “this was a rigorous process endorsed by the people”, and that members of the public participated in the discussions at all levels.

“There is no country in the world which pulls a threshold of one million as a commencement of a process towards the popular initiative, then it requires the signatures of those 1 million people to be verified independently by an independent commission. Once verified, it is required to go to the second level of government. At all levels, there is the requirement for public participation. If one house does not pass the bill, it is then taken to a referendum. Which is why this is a people and parliament based process,” he disputed.

The lawyer maintained that the Kenyan Constitution has provided the manner in which the public must be involved prior to a referendum.

He disputed High Court’s judgement saying its ruling seemed to borrow a doctrine from a foreign country. He cited India’s famed Kesavananda Bharati case (1973) that established that Parliament cannot alter the Basic Structure of the Constitution.

“What we are objecting to is borrowing a foreign doctrine to substitute what our Constitution has provided for. The people of Kenya are saying, you want to alter the Constitution, you come back to us,” he said.

Oraro posed to the seven-judge-bench: “Why would judges decide to place a threshold on how a process which has fully been provided for in the constitution can be carried out?

Solicitor General Kennedy Ogeto, appearing for the Attorney General, pointed out similar issues as regards the doctrine saying, “Our constitution has no place for the application of the basic structure doctrine. Chapter 16 of the Constitution provides that it may be amended whether through parliamentary initiative or popular initiative.”

A seven-judge-bench led by Court of Appeal President Daniel Musinga is hearing the BBI case, running from today until Friday.

The Appellate Court will then retreat to write a judgement thereafter, as Kenyans wait with bated breath on whether it will overturn the decision of the High Court that declared BBI null and void.

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 the 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.

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