BBI case hearing enters Day 3

Friday, July 2nd, 2021 10:29 |
Court of appeal judges from left: Fatuma Sichale, Patrick Kiage, Roseline Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembu and Francis Tuiyot during the BBI hearing. Photo/PD/Gerald Ithana

The hearing of nullification of the Building Bridges Initiative (BBI) process in the Court of Appeal enters day the fourth and final day. 

After two days of submissions by the President, Opposition chief Raila Odinga, the Attorney-General and electoral commission, yesterday was the turn of the BBI opponents to defend their case.

Lawyers representing the petitioners are expected to make their submissions as a continuation of the Thursday session.

Their arguments were aimed at persuading the seven-judge Bench of the  Court of Appeal that BBI was not only an onslaught on the Constitution, but that the President cannot exploit the popular initiative route.

The lawyers are particularly keen to demonstrate that the Basic Structure Doctrine — the argument that certain articles of the Constitution were protected from amendments — which was the pillar of the petitioners in the High Court, was not applicable in Kenya. 

It was also their argument that changes to entrench articles of the Constitution can only be made with involvement of the people through a Constituent Assembly.

The petitioners included economist David Ndii, who was represented  by Law Society of Kenya President Nelson Havi and the Thirdway Alliance which deployed former Senate Deputy Speaker Kithure Kindiki, Muthomi Thiankolu and Elias Mutuma.

Court of Appeal President Daniel Musinga is presiding over the Bench which consists of Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyot, who was recently promoted from the High Court.

On May 13, a five-judge Bench of the High Court declared BBI illegal and also ruled that the Independent Electoral and Boundaries Commission (IEBC) was improperly constituted and that the President can be sued while in office.

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