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Give voters chance ‘to decide Bill’s fate’

By Kamau Muthoni and Paul Ogemba | Jan 21st 2022 | 3 min read


Jubilee lawyer Ken Ogeto at Supreme Court building during the BBI Appeal case. [Edward Kiplimo, Standard]

Attorney-General Kihara Kariuki yesterday urged Supreme Court judges to give Kenyans a chance to decide the fate of the Building Bridges Initiative (BBI).

At the same time, he argued that President Uhuru Kenyatta did not lose his personal rights when he assumed office as head of State.

During the final day of hearing BBI appeals, the AG asserted that although Uhuru is the president, he still enjoys all rights that a Kenyan citizen has.

One of the lawyers representing the AG, Kamau Karori, said the Appeal Court verdict that a president cannot initiate or participate in a popular initiative amounts to unjustly limiting his rights. According to him, if Kenyans wanted to lock out the president from a referendum push then it would have been stated in the Constitution.

He was responding to an argument by David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei that Uhuru cannot be allowed to participate in a popular push for constitutional change.

“The president is therefore first of all a citizen and enjoys all these constitutional rights and freedoms by virtue of being a citizen,” Karori argued. “There is no risk in the popular initiative route being appropriated from the private citizens as Article 257 includes an inbuilt mechanism to ensure that the popular initiative route remains people-centric, regardless of how it is initiated.”

Karori also argued that the checks and balances provided in the Constitution on amendments and a referendum ensure that the president has no influence over what happens.

For example, he said, the president is required to sign the referendum Bill once passed by Parliament and forward it to the Independent Electoral and Boundaries Commission (IEBC) within set timelines and without fail.

At the same time, he said, the president does not control IEBC and neither can he decide how Kenyans will vote.

“The president would therefore not be able to sway the outcome of the popular initiative in any way. No conflict of interest can arise where the president supports or promotes a popular initiative,” Karori continued.

On increasing the number of constituencies, he argued that it should be left to Kenyans to decide by voting for or against BBI.

Paul Nyamodi, also acting for the AG, faulted the Court of Appeal and the High Court for failing to stick to the Constitution while deciding whether the president enjoys absolute immunity.

According to him, Uhuru, just like judges, enjoys immunity from being personally sued.

“The judges of this court enjoy absolute immunity. It is not lost of us that judges of this court have severally commenced proceedings in the High Court and in the Court of Appeal to assert their rights, absolute immunity,” argued Nyamodi.

The lawyer also argued that a referendum Bill emanating from a popular initiative cannot be questioned by the court as it represents the will of the people.

According to him, the requirement of one million signatures, participation by county assemblies and Parliament represent what Kenyans need or want. 

“The contents of that Bill is beyond the court’s ability to review on its constitutionality. That constitutionality rose on the power vested on the people of Kenya and is not available for the High Court,” argued Nyamodi.

When the submissions closed, the Supreme Court said it would issue its verdict on notice.

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