Uhuru hits back as he challenges BBI verdict

Monday, May 17th, 2021 00:00 |
The five-Judge deliver the judgement on the BBI Bill. They declared the initiative an illegality. Photo/PD/Charles Mathai

The battle for the soul of the Building Bridges Initiative (BBI) is to return to court after Attorney General Paul Kihara filed a notice of appeal against the High Court judgment that declared the constitutional changes unconstitutional.

President Uhuru Kenyatta and ODM leader Raila Odinga’s troops seem to have placed their hopes on the Court of Appeal even as the fight to salvage a dramatic setback on their shared legacy project.

While the Attorney General (AG)  Kihara Kariuki indicated that he will appeal the decision, Raila issued a statement indicating that his team was headed in the same direction setting the stage for a titanic legal battle.

The President through the AG hopes to convince the Appellate judges to stay the decision of the High Court that declared the BBI an illegality.

A senior lawyer familiar in the know about the petition told the People Daily that while they don’t expect the Court of Appeal to quash the whole decision because of what he described as “its solidity of argument and cogency,” they hope that it will overturn some of the findings.

Popular initiative

“We are fully aware it will be a tough legal process but we hope that the Court of Appeal judges will read the Constitution with wider lenses and appreciate the spirit of the Bill and circumstances under which it is being enacted,” said the lawyer who requested anonymity.

The lawyer said in their petition they intend to convince the judges that: “The decision that President Uhuru violated the Constitution was irrational and not subject to litigation.

That the President both as head of state and as a citizen has a constitutional right to instigate and promote constitutional changes through popular initiative.

That the ratification by the county assemblies and endorsement by more than one million Kenyans is a demonstration that ordinary citizens owned the document.

And that the government participation in promotion of the bill was meant to support the aspirations of the Wanjiku. These are some of the issues we are seeking to raiuse in court,” he said.

High profile sources at ODM also indicated that party leader Raila, had tasked party lawmakers, who are lawyers, to study the judgement and advise on the grounds of appeal.

Yesterday, Kihara, through Solicitor General Kennedy Ogeto, filed a notice of appeal at the appellate court and at the same time lodged a fresh application seeking to have the Constitutional and Human Rights Division at the High Court suspend implementation of the orders it issued on Thursday last week. 

Kihara filed the notice of appeal saying he was dissatisfied with the entire decision of the five-judge bench judgement declaring the BBI process null and void, and wants implementation of the judgement suspended pending determination of his appeal at the appellate court. 

This is after the bench led by Justice Joel Ngugi, on May 13, in a lengthy judgement declared that the BBI process was illegitimate as it was an initiative of President Uhuru aimed at amending the Constitution in contravention to the law.

“1st respondent (AG), being dissatisfied with the decision of the five judge-bench consisting of Justices  Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka intends to appeal to the Court of Appeal against the whole of the said decision,” he says.

According to the court papers, the AG wants the court to issue a stay order against the Judgement pending the hearing and determination of the appeal. 

“The court be pleased to order a stay of execution of the judgement, decree and any other consequential ordered delivered on May 13,2021 by the High court pending the hearing and determination of the application for stay under Rule 5(2)(b) of the Court of Appeal rules,” says Kihara 

In an affidavit by Ogeto, the AG argues that no prejudice will be occasioned to economist David Ndii and other petitioners in the event the Court of Appeal stays the judgement.

Ogeto argues that if the stay order is not granted the state will suffer prejudice as the consolidated petitioners will proceed to execute the orders rendering the intended appeal nugatory, causing not only the AG but also the citizens of Kenya at large irreparable harm.

“That due to the immense public interest, it is in the interest of justice for the Court of Appeal to stay the implementation of the orders pending hearing and determination of the case,” says Ogeto in the certificate of urgency application for a stay.

The judges also said the IEBC was improperly constituted and as a  result cannot conduct business, has thrown the commission into disarray.

High profile sources from IEBC disclosed that a team of lawyers will be meeting anytime from Tuesday once the Bonchari and Juja by-election exercises have been concluded.

According to the sources, the lawyers will be scrutinising their next cause of action as there are two judgments rendered with regards to the quorum of the commissioners.

The orders were issued after Ndii and other petitioners sought orders to declare that the President does not have the authority under to initiate changes to the Constitution and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution. 

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