BBI legal fight goes to Court of Appeal

ODM leader Raila Odinga is pleading with the Court of Appeal to intervene and halt the implementation of the High Court decision that stopped the push to amend the Constitution so that the effort so far expended does not go to waste.

At the same time, Attorney-General Kihara Kariuki has raised the possibility of President Uhuru Kenyatta being impeached or sued in his personal capacity unless the Court of Appeal lifts the findings of the High Court that the head of state had contravened the Constitution in particular Chapter Six for initiating and promoting a constitutional change.

“Unless stayed, this drastic finding exposes the President to immediate commencement of unwarranted adverse legal proceedings against the person of the president pending the hearing and determination of the intended appeal against the said findings. Such proceedings would serve to undermine the authority and lawful mandate of the president to the detriment of the greater public interest,” Solicitor-General Kennedy Ogeto says in an affidavit accompanying the Attorney General’s application for stay of the May 13 High Court decision against BBI.

Besides Mr Odinga, the BBI National Secretariat and the Independent Electoral and Boundaries Commission (IEBC), President Kenyatta was also expected to file application for stay of the High Court ruling through his private lawyers.

The applications stay come as the parties prepare to file substantive appeals next week. Mr Odinga and the BBI National Secretariat have indicated in their present application that they expect to file their substantive appeals “on or before May 28, 2021”.

In his application, Mr Odinga wants the appellate court to hear and determine the substantive appeal on a priority basis when it is eventually filed.

“In order, therefore, to strike a proportionate balance that preserves the adjudicatory authority of the court over the subject matter of the appeal while ensuring that no party is unduly prejudiced in its case, it is only fair and just that the substantive appeal be heard on priority basis and interim conservatory orders and/or appropriate interim reliefs that permit the IEBC to prepare for the referendum be granted,” the application states.

According to Mr Odinga, if the prayer to have the appeal heard on a priority basis is not granted, and the appeal eventually succeeds, there may be no time to implement the transitional and consequential measures for the implementation of the said proposed amendments.

This prayer will likely meet stiff resistance from the anti-BBI group who in other forums have argued that the Court of Appeal should not give it preferential treatment but let the appeal queue just like the many that have been given dates as far as in September. There is a biting shortage of judges in the Court of Appeal and the appointments of Justice Martha Koome as Chief Justice and Justice William Ouko has again left the court with just 13 judges against a constitutional establishment of 30.

The joint application by the BBI National Secretariat and Mr Odinga further pleads with the court to lift the permanent injunction issued against the Independent Electoral and Boundaries Commission (IEBC) from undertaking processes to prepare for a referendum in respect to the Constitution of Kenya (Amendment) Bill 2020.

The filing of the application by the ODM lawyers follows a similar one by IEBC in which the electoral body also pleads with the court to intervene or else their operations, including preparations for the 2022 General Election, will grind to a halt.

According to the commission, the verdict by the High Court that it lacks a quorum to carry out its operations unless reversed, will “throw the applicant’s (IEBC) constitutional responsibilities into an abrupt and indeterminate state”.

“There are currently ongoing and impending by-elections whose timelines are cast in stone and a constitutional crisis would ensue unless urgent intervention is availed (sic) by this honourable court,” IEBC chairman Wafula Chebukati states in an affidavit in support of the application.

According to Mr Chebukati, in preparing for the 2022 General Election, there are certain fundamental obligations the commission must take now and the finding that the commission lacks quorum means these tasks cannot be performed.

These tasks include preparation of election operations plan for 2022 polls, developing regulations s may be appropriate for the General Election, procurement of strategic election materials, and development and procurement of technology to be used in the elections.

“The foregoing are examples of processes whose implementation must be within statutory timelines and it follows that unless an order of stay of implementation of the decision is granted, effective preparation for the General Election will be hampered and these timelines may not be met with the result that the country may plunge into a constitutional crisis of monumental proportions,” he said.

For Mr Kariuki, it is in the greater public interest to have the orders of the High Court lifted pending the hearing and determination of intended appeals so that the President’s constitutional powers are not unduly limited and also to protect the President from a multiplicity of legal proceedings.

“In view of the profound consequences of the orders and declarations made by the High Court, it is desirable for this court to hear this matter on appeal and determine the correctness or otherwise of the jurisprudence and arrest the situation if the interpretation is not based on the correct understanding of the jurisprudence and the constitution,” says Mr Ogeto.

Through the Constitution of Kenya (Amendment) Bill, 2020 (BBI Bill), President Kenyatta and Mr Odinga had promised their political bases of goodies that would come their way if they supported and adopted the proposed changes in a referendum – new constituencies, more money the counties, inclusivity through expanded executive and ward development fund, among others.

The High Court, however, faulted the process the BBI took, which they said lacked public participation. They also criticised the initiation of a popular initiative by the President. The court also issued a permanent injunction against IEBC from undertaking processes to prepare for a referendum in respect to the BBI Bill.

In the end, the five-judge bench declared the entire BBI process “unconstitutional, null and void”.

Besides Mr Odinga and IEBC, President Kenyatta and the Attorney-General are also expected to approach the Court of Appeal with pleas for a temporary stay as the appeals are heard and determined.

The four groups have already settled on their legal teams that will advance the appeals before the Court of Appeal, consisting of senior counsel Prof Githu Muigai, James Orengo, George Oraro, Waweru Gatonye, Otiende Amollo, Mohamed Nyaoga, Desterio Oyatsi, Paul Mwangi, Jackson Awele, and Paul Nyamodi among others.

In Mr Odinga’s application for a stay order, he says by the date of delivery of the High Court judgment, the BBI Bill had been unanimously approved by more than 40 county assemblies and a majority of members of the National Assembly and Senate. All that was left was for the Bill to be transmitted to IEBC to begin preparations for a referendum.

“It was the intention of the promoters and initiators of the constitutional amendment that the proposals contained in the Constitution of Kenya (Amendment) Bill, 2020 be submitted to a referendum at the earliest opportune time,” Mr Odinga’s lawyer Paul Mwangi says in an affidavit in support application to have the mater certified urgent.

According to Mr Odinga, some of the proposed amendments are intended for implementation on or before the next General Election.

These include the proposals to increase the number of constituencies from 290 to 360, securing gender equity in Parliament, and restructuring the national leadership in the legislature and executive to introduce the offices of the Prime Minister, Deputy Prime Ministers and leader of the official opposition.

“If approved by the people in the referendum, these will require early preparations including the passage of relevant enabling legislation and regulations, administrative measures, procurement etc, which have to be carried out well in advance of the elections,” he argues.

Mr Odinga also argues that the public interest in the BBI push to amend the Constitution, backed by the more than three million people who signed in support of the BBI Bill should be enough reason for the Court of Appeal to step in and rescue the initiative.

“A constitutional amendment process vide the popular initiative is an intensive process involving strict and rigorous compliance with Articles 255 and 257 of the Constitution prior to submission of the Bill to a referendum. It is accordingly in the interest of justice that an appropriate balance be struck to ensure that in the event the appeal succeeds, the intentions of the promoters, initiators and their over three million supporters are not rendered academic,” the application states.