AG Kihara, IEBC take BBI battle to Supreme Court

AG Kihara Kariuki

Attorney-General Kihara Kariuki.

Photo credit: File | Nation Media Group

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).

This brings the number of appeals filed in relation to the BBI at the Supreme Court to three, setting the stage for another round of legal battle between the government and a citizen's voluntary initiative group opposed to amendments of the 11-year-old Constitution.

Lawyer Morara Omoke filed his notice of appeal earlier in the week.

The Attorney-General is challenging eight findings of the Appellate court that overturned President Uhuru Kenyatta's bid to amend the constitution.

On its part, the Independent Electoral and Boundaries Commission (IEBC) is fighting the findings related to its quorum and mandate.

In the notice lodged by G&A Advocates LLP,  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 Attorney-General is fighting the court's finding that the Basic Structure doctrine is applicable in Kenya and that the doctrine limits the constitutional amendments power set out in Articles 255 to 257.

Mr Kariuki is also dissatisfied with the appellate court's finding that the Basic Structure of the Constitution of Kenya can only be altered through the primary constituent power which must include four sequential processes.

The steps include civic education, public participation and collation of views, constituent assembly debate and ultimately a referendum.

Another finding that aggrieved the AG is that civil proceedings can be instituted against the President or the person performing the functions of the Office of the President during their tenure of office in respect of anything done or not done contrary to the Constitution.

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.

The court declared that a constitutional amendment can only be initiated by parliament through the Parliamentary Initiative under Article 256 or by private citizens through a popular initiate under Article 257 of the Constitution.

In addition, the AG is challenging the declaration that the BBI process contravened the Constitution - in particular, Article 10 - and that the constitutional amendment process (in the BBI) was unconstitutional and an usurpation of people's exercise of sovereign power.

Mr Kariuki is also fighting a finding that the second schedule of the Constitution of Kenya Ammendment Bill, 2020, was unconstitutional is so far it purported to predetermine the allocation of the proposed 70 new constituencies.

The schedule was also found to be illegal because it had purported to direct IEBC on its functions on constituency delimitation.


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