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Time allocation furore at BBI appeal

By Betty Njeru | Jan 18th 2022 | 3 min read

Justice Njoki Ndung'u during the commencement of the BBI appeal case. [Collins Kweyu, Standard]

The  Building Bridges Initiative (BBI) appeal hearing at the Supreme Court hearing started with passionate arguments on time allocation to various parties.

The supreme court had last week issued guidelines granting the appellants and main respondents 45 minutes and others 15 minutes to make their submissions.

But today both appellants and respondents, each represented by their lawyers, argued that the time allocated by the court was barely enough to submit their arguments.

Former Attorney General Githu Muigai, appearing for the Independent Electoral and Boundaries Commission (IEBC), pleaded for more time to ensure the parties entitled to address the Supreme Court judges do so.

“Forty-five minutes may not be sufficient to argue a matter that has very broad implications which is the quorum and functions of the IEBC,” the former AG said.

Lawyer John Khaminwa argued that the BBI appeal is a unique case of both national and international dimensions. He urged the court to retire and reconsider its position on time.

“For us to say that so and so will take 15 minutes and another 45 minutes is being very mundane. We should be able to see this case from a much broader perspective,” Dr Khaminwa argued.

Counsel for the Senate and Speaker of the Senate, Lawyer Elisha Ongoya said that the court erred in its time guidelines.  

He asked for the same time as the main respondents, considering Senate and the Speaker were the only ones to submit the question of limitation of boundaries.

“We submit that we have critical points to argue before this court. We are not here for fun,” Ongoya said.

Lawyer Martha Karua asked the court to treat all respondents equally and not lock out other interested parties.

“Do not to reduce us to spectators. We respectfully ask the court not to lock us out,” she pleaded.

It is the first of the three-day hearing at the Supreme Court.

The Attorney General, President Uhuru Kenyatta, ODM leader Raila Odinga and the IEBC want the Court of Appeal to overturn the nullification of the BBI by the High Court.

The seven judges; Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko, had in the first sitting over the dispute in December and spelt out seven key issues for determination.

They are: whether the President can initiate changes to the Constitution by popular initiative and whether the BBI proposal to create 70 new constituencies was unconstitutional and whether civil proceedings can be instituted against a sitting president.

They will also determine the place of public participation in amending the Constitution, the minimum quorum required for the Independent Electoral and Boundaries Commission (IEBC) to conduct its business, and whether each proposed constitutional change should be a separate referendum question.

Finally, they will determine whether the basic structure doctrine is applicable in Kenya and if it limits the power to amend the Constitution.

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