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Kenya: Supreme Court Judges Retire to Decide on BBI Appeal Suit
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Nairobi — The Seven-Judge bench of the Supreme Court that was hearing the Building Bridges Initiative (BBI) appeal petition has now retired to make its final decision following submissions.
The three-day hearing saw lawyers in both sides put up spirited arguments over the petition which has elicited a lot of public interest.
All eyes will be on the Chief Justice Martha Koome-led bench when they will render their verdict that will either put an end to the BBI reggae or revive it.
“The date of the judgment will be given on notice,” Koome said as she dismissed reports that the court will render the verdict on February 14, 2022.
The High Court and the Court of Appeal in 2021 had ruled that the process of amending the Constitution was unconstitutional, null and void.
In his closing remarks, Solicitor General Kennedy Ogeto who appeared on behalf of the Attorney General pleaded with the court to consider their appeal and make a sound judgment.
“As you retire to consider this matter of monumental importance to the people of this country, I know we have had very powerful submissions and in some instances emotional submissions but we look forward to the fact that you will do justice to the case before you and that you will consider it because the decision that you will make is one that will be here with us for posterity,” he said.
The Office of the Attorney General was among the lead appellants in the case which saw them submit arguments on key among issues the importance of safeguarding the provision of presidential immunity, the role of the president in initiating a popular initiative, the non-applicability of the basic structure doctrine in Kenya among others.
Former Attorney General Githu Muigai who represented the Independent Electoral and Boundaries Commission (IEBC) reminded the bench that the Constitution is not cast in stone.
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“We appreciate that the Constitution is not cast in stone. Today we have a power, and that power is well clarified, and it is a power to be exercised over a long period but we have a constitutional moment in which the promoters of this Bill feel requires a special intervention and that is not unconstitutional,” he said.
Muigai further defended the Commission on the issue of its quorum at the time when the agency had three Commissioners.
Lawyer John Khaminwa who opposed the Bill asked the Court to dismiss the appeals in its entirety.
He submitted that the initiative was the “brainchild of a crop of unimaginative politicians who were out to perpetuate selfish interest.”
“We have now current politicians and there is very little really to admire them for. Most of them you get the impression that they are job seekers and they come up with things like amending the Constitution because they want to continue being in power. They seem not to be having much that they can offer to the country,” he said.
The proposed reforms came about following a rapprochement between President Kenyatta and his erstwhile opponent Odinga and the famous handshake between the two men after post-election chaos in 2017 which left dozens of people dead across the country.
The BBI aimed to restructure the so-called winner-takes-all electoral system, by expanding the executive and parliament “to divide the spoils of victory more evenly.”
But it was seen by critics as a way to enable President Kenyatta — who is barred from running for president again in the August 9 vote — to remain in power by creating the post of prime minister.
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