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Opponents claim BBI is enterprise of elite Kenyans

By Kamau Muthoni | July 2nd 2021
Economist David Ndii [Standard]

Parties opposed to the Building Bridges Initiative yesterday told the Court of Appeal that it is an elite enterprise.

While responding to the appeal against the High Court judgement that concluded BBI is unconstitutional, economist David Ndii, Jerotich Seii, James Ngondi, Wanjiru Gikonyo and Ikal Angelei argued that it is neither a voter-driven nor a Parliamentary initiative.

Instead, the seven Court of Appeal judges were told that President Uhuru Kenyatta patronises the initiative while the national executive drives it and it excluded the common Kenyan.

Ndii and his team raised 12 issues including courts’ supervisory powers to political decisions or actions, whether IEBC has a quorum to conduct quorum, if the president has powers to participate in a referendum push and whether BBI seeks to alter the Constitution without involving the people.

Referendum push

On the third day of the hearing, their lawyer Nelson Havi poked holes in the BBI Bill, arguing that it had created a prefect for the Judiciary and had dismembered the structure of the Constitution by removing the presidential system.

“It has created an impure, hybrid, parliamentary and presidential system,” he said.

“They have sought to interfere with the independence of the Judiciary by installing an Executive prefect in the name of a Judiciary Ombudsman.” 

He faulted former Prime Minister Raila Odinga and BBI on the issue of public participation saying that to lock people out means that it is an elite-driven initiative.

Raila and BBI asserted that promoters of a popular initiative ought to only seek support from one million voters.

“The second and third appellant’s interpretation is to exclude the public from participating at any stage of amendment process thereby turning the process of the amendment by popular initiative to an elite enterprise quite incompatible with the legislative history,” Havi submitted.

Independent bodies

“Nothing can do greater damage to the sovereignty of the people than the codification of changes to the governance charter of a democratic State without the involvement of Wanjiku.”

Havi, who is also Law Society of Kenya (LSK) president asserted that the proposed amendment does not respect the separation of powers as it takes the powers of independent bodies and vests the same in individuals.

He said that the power of the National Police Service Commission would now be taken back to the Inspector General of Police.

“The attempt by the second and third respondent (BBI and Raila Odinga) to seek a distinction between an initiator and a promoter of a popular initiative is an invitation to this court to shut its eyes to the plain reality of the fifth appellant’s (Uhuru) patronage and involvement in the entire enterprise to amend the Constitution under the guise of popular initiative,” he argued.

Court of Appeal President Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott heard that the president could not be involved in a popular initiative push to amend the Constitution. Ndii and his team’s argument is that Uhuru, upon taking over presidential power, changed from a mere being to a superior one.

Havi was replying to a question by Justice Patrick Kiage on whether a president elected as independent candidate can push for a change of the Constitution as he has no parliamentary muscle to push for such.

Cannot change

“The president is not a mere mortal he is a superior being. The president cannot be a party to a popular initiative. Imagine the president demonstrating and picketing.

“You have seen legislators speak here and they ascribe themselves to be Wanjiku, a legislator can never be Wanjiku. The moment you become a president, you cease being a person, you become a public officer,” he stated.

Havi said the basic structure doctrine applies to Kenya’s Constitution, meaning there are parts that cannot be amended. He gave an example of a right to life as some of the chapters that cannot change.

Ndii’s team wants the court to dismiss the appeals filed by Uhuru, Raila, BBI and IEBC and affirm the judgement of Justices judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka.

“I plead with you fervently you dismiss the four appeals and affirm the High Court judgment.

“You owe this to the people of Kenya according to the oath that you took,” he said.

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