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Top court declines to issue advisory on BBI

By Kamau Muthoni | March 17th 2021
Makueni Governor Kivutha Kibwana in different moods during the commencement of Makueni Dissolution Commission Public Hearing at KICC on 23-04-15. [Photo Tabitha Otwori]

Judges rule there is likelihood of issuing conflicting decisions that may cause confusion on what should happen.

Makueni Governor Kivutha Kibwana and two counties yesterday suffered a major setback in their push for interpretation on whether the government can push for constitutional change and if devolved units can amend the Bill on the same.

The Supreme Court ruled that it will not hear the advisory cases filed by Prof Kibwana, Nandi and Kericho counties as there were other cases filed before the High Court raising similar issues.

In a ruling read by Justice Smokin Wanjala, the court said there was a likelihood of issuing conflicting decisions, causing confusion on what should happen.

“In (David) Ndii and others, the High Court delivered a ruling in which learned judges identified a number of issues and set them for determination. We have critically considered the import of issues raised before this court and those before the High Court. Indeed the two are similar and we do not see how the court will determine the two cases without venturing into the cases before this court. The two courts may issue determinations which might cause confusion,” Justice Wanjala said.

According to a Supreme Court bench composed of Philomena Mwilu (acting Chief Justice), Mohamed Ibrahim, Wanjala, Njoki Ndung’u and Isaac Lenaola, the issues raised required rigorous interpretation, which would not have been achieved if the top court issued an advisory.

11 cases

At the heart of the two cases was whether the Building Bridges Initiative (BBI), which came about after the handshake by President Uhuru Kenyatta and ODM leader Raila Odinga, can push for a referendum to amend the Constitution.

At the same time, Nandi and Kericho counties wanted the court to interpret whether Members of the County Assemblies can amend the Bill sent to them before submitting it to Parliament.

BBI has attracted 11 cases. Of the 11, seven were filed before the High Court in Milimani by economist David Ndii and others, and the rest by the nurses' union, Thirdway Alliance, Justus Juma, Isaac Oluchier, Morara Omike and Isaac Ogola. Two of the cases were filed in Mombasa.

Attorney-General Kihara Kariuki raised concern before the Supreme Court, arguing that there was danger of the top court and the High Court issuing different judgements if they separately hear the cases.

The Attorney General, in his response to a question by Justice Mwilu on whether Monday’s High Court orders had a bearing on the four cases filed before the Supreme Court, said that some of the parties who had been turned away by the top court moved to the High Court.

“The questions being posed in this court are the same issues before the High Court. I find it interesting that they are proceeding concurrently,” Justice Kihara’s lawyer Immanuel Mbita said.

To buttress his response, the Attorney General cited Third Way Alliance as one of the parties that filed their cases in the High Court after the Supreme Court turned them away. The Punguza Mizigo initiative urged the Supreme Court judges to admit it as a party but its application was dismissed.

Different stand

However, Nandi and Kericho counties lawyer Elisha Ongoya gave a different stand on the 11 cases filed before the courts.

According to Ongoya, the issues raised in the 11 cases are different -not related in any way.

Before the High Court, Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei want to stop the BBI process.

The petitioners, through lawyer Nelson Havi, say four Chapters of the 2010 Constitution – Chapter one, two, four, nine, and 10 – form the foundation of the country and cannot be altered or changed through amendments, either through Parliament or popular initiative.

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