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Attorney-General Kihara raises seven issues in BBI appeals

Attorney General Paul Kihara Kariuki during the launch of State of the Judiciary Annual Report (SOJAR) , January 23, 2020 [Elvis Ogina, Standard]

When the Court of Appeal sits to hear the cases filed by President Uhuru Kenyatta, ODM leader Raila Odinga, Attorney General Kihara Kariuki and the electoral commission, seven issues stand out.

If the court is to allow the Building Bridges Initiative (BBI) juggernaut back on the rails, the judges will first be determining whether the Independent Electoral and Boundaries Commission (IEBC) had quorum to verify the signatures submitted by the BBI proponents.

This question transverses the appeals filed by both the IEBC and AG. The commission argues that the question on whether two or five commissioners can legally run the institution was determined by another court and could not be reopened.

On one hand, IEBC argues that in the first case, determined by Justice Wilfrida Okwany, the minimum commissioners vary.

Meanwhile, High Court Judges Joel Ngugi, George Odunga, Chacha Mwita, Teresiah Matheka and Jairus Ngaah held that the commission should have five commissioners. It faults the five judges, arguing that the section they relied on to find that IEBC had no quorum was earlier on declared unconstitutional by a separate court.

“The learned judges of the Superior Court erred in law in finding that IEBC lacks the requisite quorum for purposes of carrying out its constitutional and statutory mandate yet paragraphs five and seven of the Second Schedule to the IEBC Act, upon which the finding was premised on had been declared unconstitutional by a judge of equal jurisdiction,” IEBC appeal papers read.

“A contrary finding on the issue of quorum had been arrived at by another judge of concurrent jurisdiction.”

On quorum, the AG argues that the High Court went beyond what had been asked and in turn, the IEBC has been rendered useless as it can no longer operate.

His contention is that the commission cannot even conduct voter registration and which it was faulted of not doing in preparation of a referendum.

“The orders issued by the High Court were so extensive and revolutionary that they go to the very foundation of the Constitution. They were beyond the matters that were before the court,” Solicitor General Ken Ogeto argues.

Another issue which the court is being asked to determine is whether the court erred by reversing an exercise which involved a consultative process including the Judiciary. According to the AG, the court illegally placed itself at the centre of the Constitution-making process.

Court guidance

He argues that means each time Kenyans want to amend the Constitution, they will have to get back to the court to ask it which parts to amend and which ones to leave.

“In effect, the learned judges decreed that whenever the people desired amendments to the Constitution, it would be imperative to seek the guidance of the court in advance to determine the changes that are, or are not amendable. This risks transforming courts into policymakers, thereby usurping the people’s freedom to determine the terms of the social contract and how they wish to change those terms,” he continues.

The AG is also contesting the court’s decision on the involvement of President Kenyatta in the BBI process. He argues that owing to perennial polls battles, three million Kenyans who signed on the document, majority county assemblies and the two Houses of Parliament ratified the president and ODM’s plan to end the violence and marginalisation.

“The above process is geared towards national reconciliation which constitutes a legitimate national political process. The process is supposed to pre-empt perennial election-related violence and marginalisation and it’s imperative that it be concluded before the next general election,” the court papers also read.

He argues that President Kenyatta cannot be faulted for promoting peace. According to him, the finding by the High Court that he had breached Chapter Six of the Constitution is not supported by evidence.

The other issue is whether the Constitution has clauses that cannot be amended.

On this, he accuses them of skewed, slanted, incomplete and erroneous reading of available academic work on the subject and of Kenya’s constitutional history and the making of the Constitution of 2010.

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