The Court of Appeal will today give its verdict on the President’s controversial three-year quest to change the Constitution through Building Bridges Initiative (BBI).
A seven-judge panel ruling could shake up the political landscape less than a year before elections since parties could not agree on anything as captured by the Independent Electoral Boundaries Commission (IEBC), Attorney General, BBI secreatariats and President Uhuru Kenyatta who appealed against the High Court decision that stopped the BBI process.
The parties asked the Court of Appeal to overturn the High Court decision and allow Kenyans to decide through a referendum.
In May this year, a High Court bench comprising Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita had declared the planned referendum through the BBI as illegal, null and void
The BBI process had sought to amend the 2010 Constitution.
The High Court ruled that a constitutional amendment through a popular initiative is a preserve of the Kenyans and not the executive.
Through Solicitor General Kennedy Ogeto, the AG presented a list of 31 key points saying the learned judges erred in law and fact by declaring the BBI unconstitutional.
AG accused the High Court of turning the BBI case into a personalised attack on the President and ended up with a wrong decision that overturned the people’s sovereign power to determine their political and governance destiny.
“Our appeal is nothing more than a plea for fidelity to our Constitution. It is simply a call for restoration of the people’s sovereign will. We are inviting the court to affirm that it is not for the courts to rewrite our Constitution but the people,” said Ogeto.
In a similar move, Kenyatta through his lawyer Waweru Gatonye also filed a 10-page formal appeal arguing the same.
Kenyatta criticised the decision as “an attempt to stop the will of the people” and his government appealed.
He argued that he was condemned unheard when the court declared that he had breached Chapter Six of the Constitution by initiating the amendment process.
Raila and the BBI Secretariat raised 16 grounds of appeal, arguing that the High Court judges usurped the sovereign power of Kenyans and declared themselves the only critical decision-maker of what can or cannot be amended in the Constitution.
Their lawyers, led by Siaya Senator James Orengo, Paul Mwangi, Rarieda MP Otiende Amollo, Lucy Kambuni and Prof Ben Sihanya, argued that the High Court got it wrong on the role of promoter and initiator of a popular initiative to amend the Constitution.
“At the end, we urge you to come back to what is before you and ensure that the sovereignty of the people is not compromised by the Judiciary before the process is ripe for courts’ intervention. There is evidence that the matters went to court before even signatures were collected,” Orengo said.
For IEBC, former AG Githu and lawyer Eric Gumbo argued that there was nothing unconstitutional about the BBI since it followed the correct procedure, and that it was absurd for the anti-BBI crusade to claim it will change the structure of the Constitution when 90 per cent of the Constitution is remaining intact.
The commission framed its appeal on four main grounds, arguing that the judges got it wrong on the findings on its quorum, voter registration, verification of signatures and public participation.
The side opposed to the BBI had economist David Ndii, activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo, Ikal Angelei,Isaac Aluochier, Kenya Human Rights Commission, Kituo cha Sheria, Thirdway Alliance and other lawyers who filed the original petitions at the High Court.
If adopted, new positions of Prime Minister and two deputies would be created and there would be a formal designation of the post of opposition leader.
The President would remain head of government and commander-in-chief, while ministers would answer to a prime minister.
The size of both houses of parliament would be expanded, while the Senate would have 50-50 representation between men and women.