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Lawyers: President Uhuru Kenyatta did not initiate Building Bridges drive

By Kamau Muthoni | Jan 20th 2022 | 3 min read

President Uhuru Kenyatta's lawyer Waweru Gatonye (left) flanked by his colleagues Mohamed Nyaoga (right) Kimani Kiragu (second from right) and Chepkoech at the Supreme Court on Wednesday, January 19, 2022 during the second day BBI appeal case hearing.[Collins Kweyu, Standard]

There is no evidence President Uhuru Kenyatta initiated the Building Bridges Initiative (BBI) referendum push, his lawyers have told the Supreme Court.

Lawyers Waweru Gatonye and Kiragu Kimani said it was the BBI national secretariat that took up the issues that had been raised during the nationwide tours to seek views of Kenyans and started the reggae.

The duo said this would have come out in the High Court if Uhuru had been allowed to participate in the case in person. 

The highest court in the land heard the president had no opportunity to defend himself when the High Court barred Attorney General Kihara Kariuki from representing him. At the same time, the court heard Uhuru was not served with court documents to personally give his stand or hire a lawyer to represent him.

“There is no evidence the president initiated the referendum,” Kiragu said in response to a question by Justice Isaac Lenaola.

Chief Justice Martha Koome, her deputy Philomena Mwilu and justices Mohamed Ibrahim, Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola, and William Ouko are hearing the BBI appeal for the second day.

Uhuru’s lawyers’ stand on his participation in the BBI process was supported by the BBI secretariat and his handshake partner Raila Odinga. Raila’s lawyer Paul Mwangi argued that the gazette notices signed by the president clearly stated that the BBI task force was to gather views from Kenyan and look into issues that would be raised to enhance national unity. This, he held, did not make him an initiator of BBI process.

“The involvement of the president on this issue was two gazette notices and the words used in those notices asked the two committees to look into the administrative and constitutional issues which would enhance national unity,” argued Mwangi.

At the same time, Uhuru argued that the immunity granted in the Constitution totally shields him from any civil litigation while in office.

Waweru told the judges that it would be against national security and public interest to summon the president to appear before a court to explain why he has taken a certain action or failed to take an action. 

According to him, the president enjoys immunity simply to enable him to carry out the functions of his office.

He is of the view that if any aggrieved person wants to pursue him, they can either initiate an impeachment or wait until he retires.

"This immunity granted is in absolute terms in regards to functions of the president where he may commit a civil wrong. Indeed, the court was wrong to put a qualification that is totally unwarranted because this immunity is a functional necessity. Without this immunity, the president cannot operate as the head of state and as the president. As long as he is acting in his capacity as president, he cannot be sued,” argued Gatonye.

He added: “You can actually pursue the president when he retires. This immunity does not create a monster, it only enables him to effectively carry out his duties as president.”

Uhuru's other lawyer, Kiragu, faulted the Court of Appeal for finding that the president can be sued in his personal capacity. He argued that there was no evidence in the first place that Uhuru participated in the High Court and therefore the court ought to have heard his view first.

According to him, the court ought to have thrown out the case against Uhuru in its entirety for breach of his right to a fair hearing.

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