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Battle to salvage BBI starts at the Supreme Court

Wednesday, January 19th, 2022 01:30 | By
Lawyers follow proceedings at the Supreme Court, yesterday. PD/JOHN OCHIENG

The battle to salvage the Building Bridges Initiative (BBI) started at the Supreme Court yesterday with the State and key parties seeking to overturn the decision of the Appeal Court which declared the law amendment project illegal.

The Attorney General and BBI lawyers teamed up with those of the Independent Electoral and Boundaries Commission (IEBC) to argue that the Appeal Court ruling was faulty.

The major points of contention revolve around the question whether the President can initiate constitutional changes through the popular initiative, the IEBC quorum issue and whether certain provisions of the supreme law were protected from amendments.

In its August 2021 ruling, the Court of Appeal upheld the decision of the High Court which found the three-year quest by President Uhuru Kenyatta and Orange leader Raila Odinga to amend the country’s supreme law through BBI unconstitutional.

The seven-judge bench also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum, saying that it lacked quorum and a signature verification process.

The Appeal Court also ruled that the President cannot promote amendment of the Constitution through a Popular Initiative and that the Head of State can be sued with respect to his actions or omissions.

Yesterday, lawyers representing the IEBC were the first to take the stand, asking the apex court to overturn the Court of Appeal decision, insisting that the electoral body had no quorum issues when it conducted the signature verification.

The IEBC team was led by Prof Githu Muigai and Eric Gumbo, who argued that the Court of Appeal and the High Court erred in law by finding that the polls body was not properly constituted.

“The Constitution sets a minimum number of commissioners the body needs to operate and that at the time, the three required commissioners by law were present,” Githu told the Supreme Court judges.

He argued that a judgement of the High Court had declared the said provision to be unconstitutional. Repealed law “The learned judges of the High Court and the Court of Appeal, and I say that, with respect, misconstrued the relevant provisions of the law in relation to the question of the petitioners relating to quorum to conduct its business,” he argued.

He argued that Section 5 and Section 7 of the IEBC Act had been declared unconstitutional and were now dead and unavailable for any use.

“Both the High Court and the Court of Appeal, relied on a repealed law, a law that was no longer in existence, and it is our very humble submission that was an incurable defect in law. We submit that the effect is that the subject provision of statute ceases to have legal effect and cannot be relied upon in the Katiba case,” he added.

Githu argued that the IEBC Act had contemplated that vacancies would arise and the mere fact there was a vacancy did not render the commission unconstitutional.

“The work of commission must continue because the law recognises the existence of a vacancy… The bench ignored Lawyers follow proceedings at the Supreme Court, yesterday. Battle to salvage BBI starts at the Supreme Court IEBC, secretariat lawyers seek to demolish ruling by High and Appeal courts on the law review initiative. Several authorities that were brought to their attention,” he stated.

It was his argument that an amendment of a statute is a legislative act, and while it is open to a court to declare an amendment to be constitutionally void, the declaration does not revive the former provisions.

Lawyer Gumbo argued that there was a conflict in decisions emanating from the courts. He argued that if a public agency was properly and legally constituted today, and to say otherwise the next day, may not be good for public administration.

Gumbo said that Article 159 of the Constitution invites courts when exercising judicial authority to promote the principles and values of the Constitution.

“In particular, where do we find these values in the Constitution? Article 10 specifically sets out the importance of the rule of law,” he argued.

Popular initiative The National Assembly, the Senate and the BBI Secretariat also made their case yesterday and supported the appeal by the Attorney General and IEBC. In August, the Court of Appeal threw out contentions by the government and the BBI Secretariat that Kenya’s Constitution does not have a basic structure.

But the National Assembly, through its lawyers, yesterday argued that the basic structure adopted had its origins in Asia and specifically the case that has been largely cited and the doctrine is mainly concerned with limiting the power of Parliament to make amendments to the Constitution.

“It does not address issues of amendments through the Popular Initiative and only addresses amendments to the Constitution through Parliament,” argued the National Assembly.

On the issue of whether the President can initiate changes to the Constitution, the lawmakers argued there was no constitutional barriers for him to do so.

“It’s our submission that it’s not prohibited in the Constitution and if it’s not prohibited, then it is allowed,” the Supreme Court heard. The BBI Secretariat, through lawyers James Orengo, Paul Mwangi and Arnold Ochieng’ described the basic structure as “an unruly horse and once you get a ride you will not know where it is going to carry you”

“This doctrine does not have any agreed on jurisprudence. It began as a theory by a German philosopher, Dietrich Conrad, and this is way before it was picked up by the Supreme Court in India. But even when it was picked up by the Supreme Court in India, it was employed for purposes of reading limitations to the power of amendment of the Indian Parliament,” argued lawyer Mwangi.

He stated that as a country, we must warn ourselves against the romanticism of other jurisprudence in the basic structure doctrine. “It’s very charming. It’s very enchanting, but the more you read it, the more you realise what kind of chaos it can cause to a constitutional order,” argued Mwangi. The hearing continues today

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