D-Day as BBI battle begins at apex court
A legal showdown is expected tomorrow at the Supreme Court as the hearing of the Building Bridges Initiative (BBI) appeal commences.
Proponents of the Bill were at the weekend tying up loose ends, with a view to putting up a spirited fight, to overturn the Court of Appeal decision which declared the process null and void.
The High Court and the Court of Appeal shot down the Bill last year, saying the entire BBI process was unconstitutional.
Seven issues
In a three-day sitting, the apex court will hear the appeals filed by Attorney General Kihara Kariuki, the Independent Electoral and Boundaries Commission (IEBC) and lawyer Morara Omoke.
In directions given by seven Supreme Court judges last Friday, only two counsel per party will address the court in conformity with established Covid-19 protocols.
“The appellants, being the AG, IEBC and Omoke, shall each have 45 minutes to highlight their submissions,” read the directions from the Supreme Court.
The Supreme Court judges said they decided to come up with seven issues on which they will allow parties to file their submissions in support or against. Key among them is the Basic Structure Doctrine and whether it is applicable in Kenya.
The main respondents are David Ndii, Jerotich Seii, James Gondi, Wanjiru Gikonyo, Ikal Angelei, Thirdway Alliance, Miruri Waweru and Angela Mwikali. Others are Phylister Wakesho, Muslim for Human Rights and Isaac Aluochier; who will also have 45 minutes each to highlight their submissions.
Kihara 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.
He has challenged the finding that the Basic Structure Doctrine is applicable in Kenya and that it can only be altered through the primary constituent power which must include the four sequential processes.
The Basic Structure Doctrine states that there must be a difference between amending a Constitution and replacing the Constitution.
The AG is also against the decision of the court to rule that the President does not have the authority to initiate changes to the Constitution.
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.
Erred in law
However, Omoke in his appeal argues 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.
He contends that a single question will not enable the people to have a clear picture of the exact issue they are being called to vote on.
“A process which has single and distinct multiple questions would avoid a situation, where a voter is compelled to throw out the baby with the bathwater,” he argued in court documents.
Contacted by People Daily yesterday, Tharaka Nithi Senator Kithure Kindiki, who is one of the lawyers challenging the petition said he and his colleagues, are ready to convince the apex court to throw out the petition.
“ On January 18th, 19th and 20th, we will perform the final rites on BBI at the Supreme Court. Thereafter, we will turn on this ill-advised Political Parties (Amendment) Bill 2021; in the High Court and, if need be, in the Court of Appeal and Supreme Court,” said Kindiki.
