PNU applies to be enjoined in plebiscite court petition

Friday, October 15th, 2021 00:00 |
Party of National Unity chair David Kamau accompanied by party NEC officials during a press briefing in Nairobi on Wednesday. Photo/PD/PHILIP KAMAKYA

The Party of National Unity (PNU) has filed an application to be enjoined in the Building Bridges Initiative (BBI) appeal at the Supreme Court.

PNU, associated with retired President Mwai Kibaki, argues that it was continuously involved in framing political compromises in the BBI Bill.

The Independent Electoral and Boundaries Commission (IEBC) on the other hand has opposed lawyer Morara Omoke’s appeal, which seeks to determine whether a Bill to amend the Constitution should concern one or multiple issues.

Omoke, IEBC and the Attorney General have separately filed appeals at the Supreme Court challenging the Court of Appeal’s decision.

IEBC in their grounds of opposition to the petition by Omoke, claims that he does not lay sufficient basis to upset the decision of the Court of Appeal on the question of multiple issues in a referendum.

Multiple amendments

The Court of Appeal had ruled that a proposed referendum on multiple amendments of the constitution, like the BBI bill, which proposed 74 amendments of unrelated laws, can be submitted as a single question to the voters, a decision which IEBC agrees with.

Omoke however in his appeal argue that the Judges erred in law and misinterpreted and misapplied the provisions of Article 257 (10) of the constitution as a single question for each proposed amendment can enable the people to have a clear picture of the exact issue they are being called to vote upon.

PNU in the application as an interested party in the AG’s appeal argues it made robust contributions to the impugned Bill by making proposals relating to enhancing devolution funds, implementation of two thirds gender principle and the expanded reorganisation of the structure of the executive.

Through its chairman David Ng’ang’a Kamau, PNU argues that only the constitutional amendment proposals which alter the Basic Structure should follow constituent power.

“The proposals that enhance the basic structure need not be subjected to the four sequential process for the reason that they contribute to the constitution making process,” argues the party.

The party states that it agrees with the Court of Appeal in regards to amendments that alter the basic structure that they must follow the primary constituent power which include civic education, public participation and collation of views, constituent assembly debate and ultimately a referendum.

Basic Structure

Their only grievance, they say, is that there are proposals in the Bill which touch on the Basic Structure but in a way enhances the constitutions’ substantive core.

“There is a sad void in the impugned judgment on whether PNU will suffer prejudice for reason that the parties have not considered the question of misapplication of interpretive matrix and the implication it may have on the Bill and PNU will suffer prejudice if the same is not corrected,” states the party in court documents.

PNU argues that the alterations that mutilate the constitutional basic structure are the only one that should be subjected to the four primary constituent power while alterations that enhance the basic structure ought not to be subjected to the amendment process.

“While the proposed interested party does not challenge the findings by the majority it finds it perplexing that provisions of the Bill that have a positive impact on the constitution’s basic structure totally escaped the attention of the learned judges holding in the majority,” they argued.

Attorney-General Paul Kihara Kariuki and the electoral agency in their appeal at  the Supreme Court, challenged the decision of the Court of Appeal on the BBI.

The Attorney-General is challenging eight findings of the appellate court that overturned President Uhuru Kenyatta’s move to amend the Constitution while IEBC is challenging the findings related to its quorum and mandate.

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