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AG's appeal sets stage for fresh BBI battle at the Supreme Court

By Paul Ogemba | October 2nd 2021

Attorney General Kihara Kariuki. [Chemtai Lochakapong, Standard]

Attorney General Kihara Kariuki has appealed the judgement on the Building Bridges Initiative (BBI) at the Supreme Court.

The case sets the stage for another bruising court battle which is likely to raise the stakes in the 2022 succession politics.

In his five-point grounds of appeal filed through Solicitor-General Kennedy Ogeto, the AG wants the apex court to overturn the Court of Appeal decision and to declare that the Constitution of Kenya (Amendment) Bill 2020 complied with all requirements to warrant a referendum.

His push at the Supreme Court is the final bullet to save BBI, but should the seven judges dismiss the application, it will be the end of the road for the pet project borne out of the March 2018 handshake between President Uhuru Kenyatta and former Prime Minister Raila Odinga.

“In the end, we want the Supreme Court to find that the Court of Appeal erred when they disregarded clear provisions in the Constitution on the steps required to amend the Constitution and which were duly followed by the BBI secretariat,” said Ogeto.

Among his five grounds are that the appellate court erred in their declaration that the “basic structure” doctrine applies in Kenya and limits the power to amend the Constitution, and that the president does not have the power to initiate constitutional changes.

The AG is also aggrieved by the appellate court’s declaration that the proposed creation of 70 new constituencies was unconstitutional, that the president can be sued in his personal capacity and the finding that there was no public participation in the BBI process to amend the Constitution.

On the question of basic structure, which the Court of Appeal found is applicable in Kenya, the AG argues that they were wrong by disregarding clear provisions in the Constitution which provides that all clauses are amendable.

“We will demonstrate that the judges ignored the historical context of amending the Constitution and ended up with conflicting interpretation to limit the people’s power to change their Constitution,” said Ogeto.

The appellate judges in their August 20 decision declared that the “basic structure” doctrine limits amendments to the Constitution and that it can only be amended through four sequential processes of civic education, public participation, constituent assembly debate and a referendum.

The judges had also found that the president does not have authority to initiate constitutional changes but the AG argues that they got it wrong since the Constitution does not discriminate on who can commence a popular initiative to amend the Constitution.

Presidential oath

“The oath the president takes to uphold the Constitution does not preclude him from involvement in amending it. The Constitution does not discriminate between private citizen, state organ or public officers on who can initiate an amendment,” said Ogeto.

He also faulted the appellate court on its findings on the creation of 70 additional constituencies, arguing that they ignored the rights of citizens who have the power to determine electoral boundaries through a referendum.

Ogeto insisted that the appellate court made a mistake in finding that the president can be sued in his personal capacity for his actions while in office, stating that it violates constitutional provisions which insulate the president from court cases.

While defending the BBI process, the AG argued that it went through proper public participation where all stakeholders were invited to give their views. He said the judges made a fundamental error since every stage of the process involved the people and their representatives.

The appeal will be mentioned before the Supreme Court registrar on October 4 to set a date for hearing before a full bench that comprises Chief Justice Martha Koome, her deputy Philomena Mwilu, judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko. 

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