Uhuru, Raila present final arguments on BBI verdict

By this argument, the pro-BBI camp was targeting the High Court’s verdict that the Bill that was being pushed to amend the Constitution through a popular initiative had violated the law because it had been sponsored by President Kenyatta, who cannot legally initiate such a process.

Mr Amollo stated that Mr Waweru and Mr Mohamed were the ones who presented the signatures to the Independent Electoral and Boundaries Commission (IEBC) for verification. 
According to the lawyer, anyone, including President Kenyatta, was free to support the initiative.

“It is the co-chairs who collected the signatures and submitted them to IEBC through an intensive process. Without a doubt, the promoters of the initiative are the two gentlemen,” Mr Amollo told the seven judges.

He added that it was also Mr Waweru and Mr Mohamed who appeared before joint committees of Parliament.

Later in the afternoon, the President, through his lawyers, Mr Waweru Gatonye, Mr Mohammed Nyaoga and Mr Kiragu Kimani, argued that the High Court judgement, if let to stand, had the implication of limiting his right to participate in political processes.

Constitutional reforms

“Nobody has [shown the] court [any] provision in the Constitution that bars the President from using a popular initiative, or says that he can only use Parliament. No provision bars the President from initiating an amendment of the constitution through a popular initiative,” said the lawyers during the second day of the hearing of appeals against the High Court decision that blocked a plan to change the Constitution.

Today, the respondents, the parties who successfully petitioned the High Court to nullify the process to amend the Constitution, will defend their position.

Earlier, the court heard that the High Court judges deliberately ignored evidence presented before them and the over three million supporters of the initiative, who declared that they had read and understood the constitutional amendment Bill.

The promoters of the BBI have faulted the judgment, saying, the judges introduced an alien organ, namely the constituent assembly, as a criterion for the exercise of the people’s sovereign right to a referendum, and which restricted the same right.

Former Attorney General Githu Muigai, who is representing the electoral commission, criticised the judgment of the High Court, arguing that those opposed to the process had moved to court prematurely.

Prof Muigai said that, going by the decision, “the judges are saying that Kenyans cannot be trusted with the constitution they made”.

According to Prof Muigai, the BBI process is a political process, which must be allowed to evolve politically. 

Seeking judicial interventions

“The judgment cannot be allowed to stand because it violates many fundamental tenets of the Constitution. If allowed to stand, it would create a recipe for chaos,” he said. 

Prof Muigai argued that the five judges of the High Court departed from their core duty of interpreting the Constitution by “converting themselves into a philosophical forum”.

He cautioned that some litigants have regrettably developed a trend where they move to court seeking judicial interventions even where there is no conflict, controversy or concrete parties.

He added that such decisions have no sanctity of law.

The former AG said the High Court sitting as a constitutional court has limited view to entertain institutional controversies brought to it by parties, who have a standing and cause of action.

Further, Prof Muigai said the High Court was wrong [in] stating that the IEBC lacked quorum as it only had three commissioners and should not be allowed to transact its business.

He said the court failed to appreciate earlier decisions on the same issue of quorum at the IEBC and the fact that there are some vacancies does not render the commission unconstitutional. 

“The work of the commission must continue despite the number. We will end up creating judicial anarchy if courts of the same jurisdiction ignore previous decisions,” he said. 

High Court’s ruling faulted

Prof Muigai said that, instead of the parties in the BBI petition drawing the issues for determination, it was the five judges who framed the issues and answered them in their judgment.

Lawyers Erick Gumbo and Moses Kipkogey, also appearing for IEBC, faulted the High Court’s ruling, saying, the judges erred by stating that the commission did not forensically verify the one million signatures collected by the promoters of the BBI.

Mr Kipkogey said IEBC verified the signatures in the manner prescribed by law. 

“There is no law requiring IEBC to verify the signatures collected by the promoters of the constitutional amendments forensically,” Mr Kipkogey stated.

Mr Gumbo and senior counsel Lucy Kambuni said IEBC carried out public participation in a manner that was acceptable by law and the verification and collection of the signatures was similarly done within the confines of the law.

In the verdict in May, the High Court said the BBI steering committee was illegal and unconstitutional and the signatures collected by the BBI task force to support the initiative did not amount to a citizen-led process.

The BBI secretariat argues in the appeal that the intention of the promoters of BBI and the over three million supporters should not be reduced to a mere academic exercise.