Stakes are high for proponents of the Building Bridges Initiative (BBI) as the Court of Appeal begins hearing an appeal lodged against a High Court judgment that stopped the push for constitutional amendments through the drive.
The seven-judge bench began the five-day hearing Tuesday that will determine whether Kenya will hold a referendum to amend the Constitution.
The bench, led by Court of Appeal president Daniel Musinga, includes justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
Pro-BBI leaders, including President Uhuru Kenyatta and ODM leader Raila Odinga, are betting on the Court of Appeal to intervene and halt the implementation of the High Court decision.
The two ‘Handshake’ partners have been passionate about the initiative, insisting it is the way to unify country and enhance a peaceful future.
BBI secretariat co-chairman Junet Mohamed told the Nation that they were confident the Court of Appeal will clear the way for the full implementation of the BBI agenda.
“BBI is alive and we are confident that the Court of Appeal will uphold the will of Kenyans who supported our Bill to realise amendments to the Constitution,” he said.
The proposed constitutional changes, he said, were not to end with Parliament’s approval or with the President’s signature but through “a referendum, which is an exercise of the will of the people – the sovereign power of the people”.
He faulted an argument by the High Court that President Kenyatta acted beyond his powers when he initiated the BBI process.
“Those arguing that some people can use their influence and power to change the Constitution is not true because it will be subjected to the will of the people at the referendum. If you fear the will of the people, then you are a dictator.”
Mr Mohamed pointed out that it will not be the first time Kenyans will go to a referendum, noting that “you can win a referendum, like 2010, and you can equally lose a referendum, like 2005”.
He said those who strongly believe that the BBI process is flawed should talk to the Kenyan people and “defeat this Bill but don’t hide behind courts and political rhetoric of (DP) Ruto”.
Deputy President William Ruto and his allies have insisted that it was not the right time for the country to hold a referendum owing to the effects of Covid-19.
“Our democracy is anchored on the rule of law, constitutionalism, separation of powers and respect for independent institutions. All patriotic citizens must defend these tenets just like the Judiciary did. Now let's focus on Covid vaccination, economic recovery, the Big Four and stay united,” the DP tweeted on May 14 just after the High Court verdict that declared the BBI process flawed.
In his Madaraka Day speech in Kisumu on June 1, President Kenyatta went on the offensive against the Judiciary over the BBI drive, accusing judges of constitutional rigidity that he said was denying Kenya the opportunity to address cyclical election troubles.
“While I stand by the rule of law and I will always obey the decisions of the courts, I’m also compelled by my position to heed the sovereign and supreme voice of the people of Kenya,” the president warned.
He said it was far from over, describing the court order stopping the process as an attempt to usurp the will of the people.
On Saturday, Mr Odinga also weighed in on the matter at the burial of former Gem MP Jakoyo Midiwo on Saturday, expressing optimism that the Court of Appeal will give them the green light to continue with the BBI agenda.
“The BBI matter is in the courts and we have a team of lawyers led by none other than the senator of Siaya James Orengo. We are confident that through this competent team we are going to succeed and that BBI is going to move forward,” Mr Odinga said.
“We are confident that ‘reggae’ will continue since BBI was just on half time and will now resume,” he said.
Jubilee secretary-general Raphael Tuju said BBI, a product of the ‘Handshake’ between President Kenyatta and Mr Odinga, seeks to cure the cycle of election chaos in the country.
“We cannot get investors if there is chaos and street demonstrations. When we complete the BBI process, we need to have a new government which will unite Kenyans,” he added.
He revealed that they have decided to start preparing for next year’s polls by working on a coalition between the two leaders’ parties – Jubilee and ODM - to enhance the continuity of their handshake deal.
“We have elections next year, we do not want the spirit of the Handshake and BBI to die when President Kenyatta leaves office next year. We want the next government to continue with what was started by the two leaders,” Mr Tuju explained.
He said there is a need to build an inclusive nation “where no tribe feels sidelined by the government.”
The High Court had on May 14 found that President Kenyatta acted in excess of his powers and contravened the Constitution, in particular Chapter Six, when he initiated and promoted constitutional changes.
The five-judge bench said the 14-member BBI task force and the steering committee led by the late Yusuf Haji, a former Garissa senator, was an illegal entity.
The bench, led by Justice Joel Ngugi, said the President made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue that is not available to him.
He should have used a parliamentary initiative by petitioning the National Assembly through the Attorney-General to consider the desired amendments, the court ruled.
‘Presidential initiative’
They described the BBI process as “a presidential initiative guised as a popular initiative”, and allowing it to be sustained amounts to having the Head of State as promoter and referee of his own initiative.
"The President cannot be an initiator of and an umpire in (amending) the Constitution," said the court, adding that BBI was muddled by conflict of interest.
Now, BBI supporters will be looking to the appellate court to salvage the plan birthed by the "Handshake" so that the efforts and resources expended so far does not go to waste.
