Raila, BBI team oppose prayer by five professors

Orange Democratic Movement (ODM) leader Raila Odinga. [Boniface Okendo, Standard]

Orange Democratic Movement (ODM) leader Raila Odinga and Building Bridges Initiative (BBI) task force have opposed two applications by five professors to join the legal battle before the Supreme Court.

Professors Rosalind Dixon, David Landau and Gautam Bhatia filed an application to join the appeals filed by Attorney General Kihara Kariuki and the Independent Electoral and Boundaries Commission (IEBC) as friends of the court.

However, Raila and the BBI task force argue that the trio have come too late in the day. The former prime minister and the task force say the applications by the professors were meant to derail and water down the hearing of the appeals.

They said the three were involved in the case at the High Court and in the Court of Appeal. At the same time, Raila and BBI team want the Supreme Court to dismiss a separate application filed by Professors Richard Albert and Yaniv Roznai to also join as amici curiae (friends of the court).

“The applicants have all along been aware of the proceedings from the High Court and never made any attempts to participate and or be joined and hence it is a mere afterthought for them to make the application at this stage in an attempt to water down and drag the hearing of the petition of appeal herein,” Raila and BBI team said.

At the heart of applications are two appeals filed by the AG and IEBC challenging the Court of Appeal’s verdict ending the BBI process.

Justice Kihara, in his appeal against the judgment delivered on August 20, says he will contest the finding that basic structure doctrine is applicable in Kenya.

He is also aggrieved that the Court of Appeal affirmed that the Constitution can only be amended when there is civic education, public participation and engagement of the county assemblies before a referendum.

Court of Appeal president Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott upheld the High Court judgement that declared the Constitution of Kenya (Amendment) Bill, 2020 null and void, prompting the AG to seek redress at the highest court.

The AG is also aggrieved by the finding that President Uhuru Kenyatta can be sued while in office.

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

He argues that the president enjoys immunity and can only be sued after his tenure.

He also argues that the Court of Appeal erred by finding that Uhuru could not initiate the BBI process and that the initiative was illegal.

Meanwhile, IEBC will be raising two issues before the Supreme Court.

The electoral body is aggrieved by the court’s finding that it did not have a quorum. IEBC is, however, satisfied by Justice Sichale’s finding, thus, it will only appeal the verdicts by her six colleagues.

David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo, Ikal Angelei had gone to the High Court seeking to stop attempts to amend the Constitution.

The petitioners, through lawyer Nelson Havi, urged the court to declare that five chapters of the 2010 Constitution – Chapter One, Two, Four, Nine and 10 – form the foundation of the Constitution and cannot be altered or changed through amendments, either through Parliament or popular initiative.

Chapter One deals with the sovereignty of the people and the supremacy of the Constitution.