Appellate court president Justice Musinga appoints seven judges to hear BBI appeal case

Thursday, June 24th, 2021 12:46 | By
Justice Musinga will constitute the seven-judge bench after being permitted by the Chief Justice David Maraga. PHOTO: Courtesy

The President of the Court of Appeal Justice Daniel Musinga has constituted a seven-judge bench to hear the appeal on Building Bridges Initiative (BBI) case from June 29 to July 2, 2021.

A circular issued by the Judiciary on June 24,2021 revealed the move stating that Musinga has formed a bench to hear the appeal which will be chaired by him, alongside with justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

The seven are expected to sit next Tuesday and begin hearing submissions by parties in the BBI appeal. 

This is after President Uhuru Kenyatta, ODM leader Raila Odinga, the BBI National Secretariat and the Independent Electoral and Boundaries Commission (IEBC) filed separate appeals challenging the High Court May ruling that declared the bid to amend the constitution through the BBI as unconstitutional.

The appeals came after the parties were dissatisfied with the entire decision of the High court five judge bench judgement issued in May declaring the BBI process null and void.

This is the first case Musinga will handle after he was recently appointed as the President of the Appellate Court after his predecessor, Justice William Ouko was promoted to the Supreme Court.

Top lawyers in the country including Paul Mwangi are part of the legal teams that will be battling out in court to salvage the initiative spearheaded by the President and his handshake partner Odinga.

The appeal came after in May this year a five-judge bench consisting of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka ruled that the President does not have a Constitutional mandate to initiate amendments through a popular initiative under Article 257.

They added that he can be sued in his or her personal capacity during his or her tenure in office for contravening the law.

The judges said the constitutional amendment bill of November 2020, popularly known as the building bridges initiative (BBI), was illegal as it sought to alter the basic structure of the current constitution.

They further said any proceedings to amend the constitution ought to be started either by parliament or through a popular initiative. For the president to institute such amendments would be akin to granting him the roles of the promoter and referee, since, after beginning the process, he would “sprint to the finishing line to await and receive it and to determine its ultimate fate,” they said.

“A declaration is hereby made that the president does not have authority under the constitution to initiate changes to the constitution, and that a constitutional amendment can only be initiated by parliament through a parliamentary initiative under article 256 or through a popular initiative,” said the judgment.

David Ndii and other petitioners vide consolidated petitions had sought orders to declare that the President does not have the authority under the constitution 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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