BBI appeal case: Attorney-General laments limited time given to him

The Supreme Court has favoured activists opposed to the Building Bridges Initiative (BBI) by giving them more time than the appellants to address judges, Attorney-General Kihara Kariuki has protested.

The AG says the court has granted the activists more than six hours to argue their case, while the appellants (the AG, the electoral commission and lawyer Morara Omoke) have only two hours and 15 minutes.

“It is the Attorney-General’s humble view that, even on the basis of equality of arms, the time allocated to the two sides should be equal or as near as possible equal. As it is, the time... is heavily skewed in favour of respondents,” says the AG through Solicitor-General Kennedy Ogeto.

In a letter to the Supreme Court’s deputy registrar seeking revision of court’s directions on allocation of time to the parties, the AG says the 45 speaking minutes allocated to him are not enough. He has, instead, asked to be given a full day during the three-day hearing.

Mr Ogeto says the AG will share the day with the other two appellants — Mr Omoke and the Independent Electoral and Boundaries Commission (IEBC).

Two lawyers per party

He has also suggested that the second day be allocated to the respondents as the third day is reserved for replies to the respondents and any other issue that may arise.

Another alternative proposed by the AG, as a remedy, is for the appellants to be given six hours to be shared between them or that he be allocated at least one hour and 45 minutes extra time.

Mr Ogeto observes that the issues the Attorney-General will be addressing are weighty and constitute matters of great public importance considering that he is the main appellant.

The AG wants court to revise the directions before the judges start to hear the case this morning. The parties have already filed their written arguments limited to 28 pages as per the court’s directions. 

The AG is also uncomfortable with the directive that only two lawyers per party appear in line with Covid-19 protocols.

Contravened the Constitution

He wants to be allowed to have four advocates so as to accommodate his two external lawyers who have been allocated two important thematic areas for argument before the court. Mr Kariuki is fighting the Court of Appeal’s finding that the basic structure doctrine is applicable in Kenya and that it limits the constitutional amendments power set out in Articles 255 to 257.

He is also dissatisfied with the appellate court’s finding that the basic structure of the constitution can only be altered through the primary constituent power (the people) and must include four sequential processes— 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 in respect of anything done or not done contrary to the Constitution. He is further against the decision of the court that the President does not have the authority to initiate changes to the Constitution.

In addition, the AG is challenging the declaration that the BBI process contravened the Constitution because its second schedule purported to predetermine the allocation of the proposed 70 new constituencies and to direct IEBC on its functions on constituency delimitation.

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