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Uhuru initiated constitutional change process, argue lawyers

By Paul Ogemba | July 2nd 2021
Lawyer Kithure Kindiki during the second day of hearing of BBI at the Appellate's court on June 30, 2021. [Denish Ochieng, Standard]

President Uhuru Kenyatta’s involvement in BBI process was at the centre of arguments at the Court of Appeal yesterday as several parties faulted him for using State machinery to support it.

In submissions to defend the High Court decision that stopped the Building Bridges Initiative (BBI) process, lawyers argued that the president made an incurable mistake by failing to declare if he was supporting the initiative as a private citizen or in his capacity as the Head of State.

Lawyer Elias Mutuma representing Thirdway Alliance argued that the BBI is a direct product of the Handshake between Uhuru and former Prime Minister Raila Odinga and that the president cannot run away from his actions after the High Court found that he illegally initiated the process.

“The High Court correctly found that the BBI was not a popular initiative but an initiative by the president. If he wanted to start the initiative then he should have informed us that he is doing so as a private citizen,” said Mutuma.

He said the BBI Secretariat lied to the court that Suna East MP Junet Mohamed and former Dagoretti South legislator Dennis Waweru were the BBI promoters when there is evidence of State machinery being used to promote the process.

Tharaka Nithi Senator Kithure Kindiki accused the president, the Independent Electoral and Boundaries Commission (IEBC), the Attorney General and the BBI Secretariat of wrongly dismissing the High Court decision when it is one of the best reasoned in the history of Kenya’s constitutional journey.

Prof Kindiki stated that they entirely agree with the decision that the BBI was an illegal process to amend the Constitution, and was initiated by the president in his official capacity and not as a private citizen.

Other avenues

He said the president had other avenues of engaging the Cabinet and the Attorney General if he wanted the Constitution amended.

“Their view that the BBI was a popular initiative is a lie. It was not a popular initiative but an Executive initiative, which is not provided for in the Constitution.

"They only attempted to rope in the people at the tail end of the process,” said Kindiki.

He dismissed claims that the president was not involved in the process yet his fingerprints and footprints are all over when he created a task force, then a steering committee to implement the BBI task force report through an official Kenya Gazette notice.

On the issue of public participation, Kindiki argued that most counties were ambushed to pass the BBI Bill through enticements of car grants without being given a chance to interrogate the content.

On the joint Justice and Legal Affairs Committee report on the BBI Bill, he argued the report clearly identified unconstitutional provisions, which they could not amend.

He also dismissed submissions by the president on his immunity from civil proceedings, stating that the laws that insulated the president from being found personally liable are archaic and outdated.

On whether the basic structure of the Constitution can be amended, Mutuma argued that the High Court judges were right since there are eternity clauses in the Constitution, which cannot be changed either expressly or by implication.

Mutuma defended the High Court on claims that it determined a dispute that was non-existent, arguing that they were justified to move to the court to defend the Constitution after realising that the BBI was going to sail through because State resources were being used.

Lawyer Caroline Jerono, representing Miruru Waweru, argued that the IEBC lied when they said their hands were tied and their role was only to ensure the initiative has one million signatures from registered voters.

The arguments were supported by lawyer Gilbert Nyamweya who said that the High Court rightly found that the electoral commission lacked quorum to conduct business.

“It is regrettable that IEBC does not have a quorum, but they should not be apologetic or defensive about it because they are victims of circumstances and cannot fill the vacant positions on their own,” said Nyamweya.

Dr Muthomi Thiankolu equated the BBI to a monster, which the Judiciary must slay to save Kenya from slipping back to the old days of constitutional violations.

Lawyer Morara Omoke, who was one of the petitioners at the High Court, argued that there has never been registration of voters to allow many young people who have attained the age of 18 to participate in the referendum.

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