Prospects of BBI referendum dim as hearing date is set 

The appellate court will conclude hearing the case against the damning verdict on the Building Bridges Initiative (BBI) in July, throwing referendum prospects into disarray.

The Court of Appeal yesterday gave parties 14 days to file submissions, with the hearing set for June 29 to July 2, after which judges will retreat to write their judgment.

BBI proponents had initially settled on a referendum in June, which was later pushed to July, but this, too, will not be as the electoral commission cannot act until the case is decided.

Just after Parliament had passed the Constitution of Kenya (Amendment) Bill, the High Court stalled the process after declaring the legislation unconstitutional.

The Independent Electoral and Boundaries Commission (IEBC), which is required to hold a referendum within 90 days of notification by the President, was also stopped from making preparations.

Yesterday, lawyers representing parties aggrieved at the decision, including the President, BBI secretariat and Attorney-General, pushed for rushed proceedings. But the opposing side asked for more time to peruse applications.

Court of Appeal president Daniel Musinga allowed requests by the various parties involved in the case for the bench to be expanded. The court also consolidated various appeals filed by parties to expedite the hearing.

At the same time, the court granted IEBC interim orders suspending the finding that it was not properly constituted as it only has three out of the required nine commissioners. Judges lifted the order to allow the electoral body to conduct the upcoming by-election in Kiambaa Constituency.

Limited time

This was after the commission, through lawyer Githu Muigai, said the court decision would affect it’s work.

Justice Musinga, who sat alongside justices Roselyn Nambuye and Hannah Okwengu, warned parties against prosecuting the case outside the court.

“Let us not use our respective positions to prosecute this case. Please allow the court to make a fair, properly informed decision without unnecessary and adverse comments by all concerned,” Justice Musinga said.

Mr Ochiel Dudley, representing Katiba Institute, had earlier asked the court to cite President Kenyatta and Mr Odinga for contempt of court for discussing the appeal during the Madaraka Day celebrations in Kisumu.

The President accused the judges of constitutional rigidity in his speech on Tuesday. These were his first public comments on the High Court ruling declaring the BBI process illegal and unconstitutional.

Yesterday, the judges did not allow further arguments on the matter, instead caution all the parties to desist from arguing the case in the media or in other forums.

Earlier, lawyers James Orengo and Paul Mwangi, who are appearing for the BBI secretariat had wanted the appeal heard in four days. Mr Orengo had suggested that the appellants be allocated two days to present their arguments. 

He also urged the court to allocate each appellant two hours to comment on their written submissions, which should be limited to 40 pages.

9,000-page appeal

“I agree with the sentiments of Prof Githu Muigai, George Oraro, Waweru Gatonye, Mohammed Nyaoga and Solicitor-General Kennedy Ogeto that each party be given limited time,” Mr Orengo said.

Mr Oraro, appearing for the AG, said he has filed the substantive appeal together with all the written authorities and he required three hours to present his case.

Representing the President, Mr Gatonye, Mr Tom Macharia and Mr Nyaoga suggested abandoning all the preliminary applications and proceeding with the main appeal.

“The applications and the time the court will spend to deliver a ruling will be equal to the time to argue the main appeal,” Mr Gatonye stated, adding, “I concur that we abandon the preliminary application.”

However, Thirdway Alliance’s Elias Mutuma, one of the respondents, said they were served with a 9,000 page appeal and require more time to answer the issues raised. He said they would need at least 21 days. But Mr Mwangi countered that the documents were part of the evidence presented before the High Court.

Further, Mr Mutuma sought to file Hansard reports from the Senate and National Assembly on the BBI. But the court directed him to file an application so that directions on the same could be given.

Dr John Khaminwa, representing the Kenya Human Rights Commission, cautioned against giving any orders at this stage saying “the matter is sensitive and of great public importance”.

In its decision last month, the High Court said President Kenyatta contravened Chapter 6 of the Constitution by initiating and promoting the BBI.