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AG to take BBI appeal to Supreme Court, cites three sticky findings

By Jacob Ngetich | August 23rd 2021

Attorney-General Paul Kihara Kariuki. [Chemtai Lochakapong, Standard ]

Attorney-General Kihara Kariuki has indicated that he will move to the Supreme Court to challenge the Court of Appeal judgement that declared the Building Bridges Initiative (BBI) unconstitutional.

Prof Kariuki wants the apex court to determine three findings by the Court of Appeal judges in the BBI case - applicability of the basic structure doctrine, President’s immunity and remit of constitutional amendment by popular initiative.

The Attorney General’s appeal directly targets the case of David Ndii and Others v the Hon Attorney General and Others on the BBI case.

“The Attorney General has not had occasion to consider and evaluate the detailed reasoning behind the findings that were made by the various Court of Appeal judges in the BBI case. This will be done once copies of the judgement are provided on August 23, as was indicated by the President of the Court of Appeal,” read the proposal by Prof Kariuki.

The AG noted that in his findings there were misgivings with Justices Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott decision against which he will consider appealing at the Supreme Court after a careful evaluation and analysis of the detailed reasoning in the judgement.

In their judgement, six out the seven judges agreed that there’s no contestation that the Constitution has a basic structure and a rigorous constitutional change procedure similar to that used to adopt the 2010 Constitution must have been observed. They also found that the President was initiator of the BBI and that the steering Committee has no constitutional mandate to initiate changes through the popular initiative.

The judges noted that public participation was not conducted appropriately and that the BBI proponents overstepped their mandate by suggesting increase in the number of constituencies by 70 yet delimitation of boundaries is a preserve of the IEBC. 

But, Prof Kariuki argues that this is the first time that the basic structure doctrine has been applied in a country whose Constitution provides for the participation of the people, through a referendum, in pushing for amendments.

Attorney-General Paul Kihara Kariuki. [Chemtai Lochakapong, Standard ]

“Our analysis shows that historically, the doctrine has been applied only in situations where the amendment power is reserved for Parliament, and where the people have no direct involvement through a referendum. Second, our Constitution already has elaborate provisions to protect its basic structure. There is therefore no basis to imply into the Constitution the basic structure doctrine,” reads the AG’s proposal for appeal.

On constitutional amendment by popular initiative, the judges held that the President does not have authority to initiate amendments to the Constitution and this can can only be initiated by Parliament through a parliamentary initiative or through a popular initiative.

But the AG argues that there is no provision in the Constitution barring the President from initiating amendments through popular initiative.

The finding by the judges, the AG noted, fails to recognise, that popular initiative is the only route through which a President who was elected as an independent candidate, or who has minority support in Parliament, may use to initiate amendments to the Constitution.

“It is also our view that the President, just like any other citizen, enjoys civil and political rights, including the right to initiate amendments through popular initiative,” the AG argues.

Kariuki notes that the finding that the President has no immunity contradicts the very essence of presidential immunity as provided for in the Constitution by exposing the President to legal proceedings during his term for his official conduct. On Wednesday ODM leader Raila Odinga said that he will not challenge the judgement of Appeals court at the Supreme Court.

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