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We will give our verdict in 48 days, appeal judges say

By Paul Ogemba | July 3rd 2021
Court of Appeal Judges, from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot. [Collins Kweyu, Standard]

The four-day legal thriller at the Court of Appeal over Building Bridges Initiative (BBI) ended last evening with the judges saying they will give their decision on August 20, at 9am.

Daniel Musinga, the Court of Appeal president who presided over the bench comprising judges Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott said they deliberated before arriving on the date.

“We deliberated on this date, of course looking at the nature of the matter and the volumes before us,” Justice Musinga said.

The initiative’s political sponsors, President Uhuru Kenyatta and former Prime Minister Raila Odinga made a final impassioned plea to the seven-judge bench to clear the way for a referendum on a process the respondents described as fraudulent, dubious and unconstitutional.

Their submissions in rejoinder to arguments by parties that oppose the BBI capped a four-day battle, with focus now shifting on the seven judges as they retreat to determine the momentous process to amend the Constitution.

Before this, Kiragu Kimani representing President Kenyatta argued that it is absurd for the parties to say the president should not enjoy his rights as a Kenyan citizen by virtue of his office.

He submitted that the High Court judges cannot be trusted on the findings against the president for contradicting themselves and arriving at a decision to stop the BBI on the false claims that he was the initiator of the process.

“He is a citizen and entitled to protection of the law just as any other individual. Their suggestions that once a person is elected as president he gives up his rights is the most unfortunate suggestion and a failure to interpret the Constitution holistically,” said Kimani.

He maintained that the High Court judges wrongly found that the president had violated Chapter Six of the Constitution when they had already held that he was discharging the duties in his official capacity.

Kimani added that it is tragic that the BBI opponents would demand that the president should give back money spent on the initiative when there is no evidence that public funds were spent.

Court of Appeal judges from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot. [Collins Kweyu, Standard]

Lawyer Waweru Gatonye said what the anti-BBI team presented were just scenes of emotional litigants who were jilted because they were told they did not serve the president to give him a chance to respond to the pleadings before the High Court.

The sovereignty of the people

Senior Counsel James Orengo representing Raila and the BBI Secretariat urged the Court of Appeal to be mindful of the consequences of dealing with a national problem, which requires proper reasoning and not name-calling and blaming people who did not initiate the BBI.

“At the end, we urge you to come back to what is before you and ensure that the sovereignty of the people is not compromised by the Judiciary before the process is ripe for court’s intervention.

“The matters went to court before even signatures were collected,” said Orengo.

He pleaded with the court to uphold the people’s will by giving a green light for a referendum, stating that denying them a chance will amount to a violation of the Constitution.

According to Orengo, the Constitution is self-contained in the manner in which it can be amended and the High Court judges did not have to go to foreign jurisdictions to base their decision.

Senior Counsel James Orengo follows proceedings at the Appellate Court on Friday, July 2, 2021. [Collins Kweyu, Standard]

He said the BBI followed the correct procedure and had the court been patient to await the conclusion, they would have reached a different finding.

Lawyer Paul Nyamodi for the Attorney General also defended the president, saying there is nothing that required him to consult the Public Service Commission before appointing the BBI task force.

Nyamodi said the High Court got it wrong on the basic structure principle on account that the Constitution can be amended through a popular initiative.

Correct procedure

Former Attorney General Githu Muigai for the IEBC argued that there was nothing unconstitutional about the BBI since it followed the correct procedure before the commission approved it.

“I have never seen anything like this case. We can’t agree on anything, we can’t agree on who the people are and can’t agree on basic structure when our Constitution is very clear on what can be done to change it,” said Prof Muigai.

He said he found it absurd that the anti-BBI team argued that the proposed changes are going to change the structure of the Constitution when 90 per cent of the Constitution is remaining intact.

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