BBI dispute moves to Supreme Court

The battle to amend the Constitution has formally moved to the Supreme Court after one of the private citizens who fought the proposed referendum filed a notice of appeal.

Morara Omoke, a lawyer, wants justices to set aside the Court of Appeal’s finding that a proposed referendum on multiple amendments to the Constitution can be submitted as a single question to voters.

He wants the apex court to declare that Article 257(10) of the Constitution requires all the specific proposed amendments to the document to be submitted as separate and distinct referendum questions to the people.

Mr Omoke argues that an omnibus bill would violate election principles and the freedom and right to vote.

Clear picture

He argues that a single question for each proposed amendment could give voters a clear picture of the exact issue they are being called to vote upon.

He says an omnibus bill may contain one or more objectionable matters lumped together with good amendments.

Not only is such a bill likely to confuse voters, he says, but it would deny them the freedom of choice.

He wants the Supreme Court to uphold the High Court finding that the 74 clauses proposed for amendment in the Constitution of Kenya (Amendment) Bill - BBI - should have been presented as a separate referendum questions.

The High Court had said this not only avoids confusion but also allows voters to decide on each presented amendment question on its own merit.

Mr Omoke urges the Supreme Court to determine whether the Constitution envisages the possibility of a bill to amend it by popular initiative in the form of an omnibus bill or whether specific amendments are to be submitted as separate and distinct questions.

In his petition he cites the final Report of the Independent Commission on Referendums released in July 2018.

The report says a binary question could not capture the views of the electorate. It also says binary choices can encourage polarisation.

Campaigners are incentivised to present the two options as completely opposed to each other, encouraging voters to position themselves as “for” or “against” with little room for nuance.

This can increase the focus on political or even societal divisions rather than on common goals or positions, and promote an adversarial rather than deliberative approach to debate.

Mr Omoke’s petition came a day after the Attorney-General confirmed the government’s intention to make a similar move to the Supreme Court. The AG wants the court to determine three issues.

According to Solicitor-General Kennedy Ogeto, the AG is not satisfied with the Court of Appeal’s finding on the applicability of the basic structure doctrine, the remit of constitutional amendment by popular initiative and presidential immunity.

He said the AG is waiting for the Court of Appeal to provide copies of the judgment so that he can consider and evaluate the detailed reasoning behind the findings made by the judges. The appeal will be filed within two weeks.

“Those are some of the findings that the Honourable the Attorney General has misgivings with, against which he will consider appealing to the Supreme Court after a careful evaluation and analysis of the detailed reasoning in the judgement,” Mr Ogeto said.

A majority of Court of Appeal judges held that the basic structure doctrine applies in Kenya and that it limits the power to amend certain provisions of the Constitution that are considered to form the basic core of the Constitution.

The AG disagrees with this position, Mr Ogeto said.

He explains that this was the first time the basic structure doctrine had been applied in a country whose Constitution provides for the participation of the people, through a referendum, in the process of amending it.

On presidential immunity, the majority of the Court of Appeal judges found that civil proceedings can be brought against the President while he or she is in office in respect of anything done or not done contrary to the Constitution.

But the AG disagrees with this position, saying this finding has no support in the provisions of the Constitution.

On the remit of constitutional amendment by popular initiative, the Court of Appeal judges held that the President does not have the authority to initiate changes to the Constitution.

But the AG says there is no provision in the Constitution barring the President from initiating amendments to the Constitution through popular initiative.