Attorney-General Paul Kihara Kariuki and the electoral agency have moved to the Supreme Court to challenge the decision of the Court of Appeal on the Building Bridges Initiative (BBI).
The Independent Electoral and Boundaries Commission (IEBC) has filed a notice of appeal saying that it is dissatisfied with the Court of Appeal judgement that nullified the BBI.
“Take Notice that the IEBC, the Appellant being dissatisfied with the decision of the Court of Appeal given on the 20th day of August 2021 by Honourable Justices D. Musinga; R. Nambuye; H. Okwengu, P. Kiage, G. Kairu, F. Sichale and F. Tuiyot intends to appeal to the Supreme Court against such parts of the decision in relation to the findings by the Honourable Court touching on or relating to the constitutional composition, quorum and mandate of the IEBC,” reads the court documents.
IEBC says it intends to challenge findings of the Court of Appeal on the constitutional composition of the commission, quorum and its mandate.
On his part the AG, through Solicitor General Kennedy Ogeto, will also be seeking clarification on the remit of a constitutional amendment by popular initiative and presidential immunity.
The steps include civic education, public participation and collation of views, constituent assembly debate and ultimately a referendum.
“Take notice that the Attorney General being dissatisfied with the decision of the Court of Appeal given at Nairobi on August 20 intends to appeal to the Supreme Court against such part of the said decision that upheld the findings of the High Court,” reads court documents.
On the question of presidential immunity, the AG holds that the president was insulated from prosecution during his tenure, and that the judges contradicted the constitutional provisions on presidential immunity.
He is further against the decision of the court to rule that the President does not have the authority to initiate changes to the Constitution.
BBI Secretariat also announced that it will challenge the Court of Appeal’s verdict at the Supreme Court.
BBI secretariat co-chairpersons Junet Mohamed and Denis Waweru said that they shall support the appeal of the Attorney General at the Supreme Court on BBI.
They said that they believe that the Supreme Court has a wider and more encompassing mandate when dealing with matters of great national interest.
“we are determined to ensure that some of the very noble proposals in the BBI are not lost and if they have to be lost it must be known that we made our best efforts to secure them,” they said.
The Court of Appeal ruled that the BBI bill was unconstitutional, illegal null and void.
The judgment, in which the second-highest court was heavily critical of President Kenyatta and the Independent Electoral and Boundaries Commission (IEBC), stated that the BBI Bill was unconstitutional and usurped the people’s sovereign power.
The seven-judge bench also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum. The Bill had already been approved by parliament.
The judges also upheld the High Court’s finding that the President has no authority to promote amendment of the Constitution through a popular Initiative and that he can be sued with respect to his actions or omissions in the Constitution.
