Githu Muigai

Prof Githu Muigai and fellow lawyers Eric Gumbo and Justus Munyithya during the Building Bridges Initiative appeal hearing at the Supreme Court in Nairobi January 18, 2022. 

| Dennis Onsongo | Nation Media Group

Lawyers push for BBI revival as Supreme Court hearing begins

What you need to know:

  • Attorney General explains why a President cannot be barred from using the popular initiative route to amend the constitution.
  • The Independent Electoral and Boundaries Commission (IEBC) says it has the requisite quorum to conduct the proposed referendum.

The government yesterday defended the legality of the constitutional amendments proposed under the Building Bridges Initiative (BBI).

This came as the Supreme Court began hearing the BBI appeals on a day two lawyers walked out after they were blocked from addressing the judges.

The Attorney-General, the electoral agency and the BBI national secretariat in their respective briefs faulted the High Court and Court of Appeal judges for stopping a process that they said had not only followed all legal procedures but had also been endorsed by Kenyans.

While making a case for the revival of the government-backed process that sought amendment of 74 legal provisions, the appellants’ lawyers urged the apex court to overturn the adverse judgments.

Attorney-General Kihara Kariuki, who was the first to argue his appeal, explained why a President cannot be barred from using the popular initiative route to amend the constitution and enjoys immunity to any legal proceedings (both criminal and civil suits).

“Article 257 of the Constitution does not discriminate between private citizens and public or state officers. The route is available to ‘citizens’, who, obviously, include the President,” said the AG through Solicitor-General Kennedy Ogeto.

“Our study of the history of this provision is that the popular initiative route was meant to curb the monopoly of Parliament on matters of constitutional amendments,” the AG explained.

He contended that the appellate and High Court judges disregarded the implications of their finding that the President cannot use the popular initiative route to amend the Constitution or the options available to a president who may wish to spearhead constitutional changes. 

Public participation

He said the judges failed to explain the options available to a president elected as an independent candidate with regard to amending the Constitution.

Mr Ogeto said judges of the Court of Appeal “answered important questions the wrong way and in some instances had contradictory justifications”.

Citing Article 135 of the Constitution, which provides that a decision of the President in the performance of any function under the Constitution should be in writing and must  bear the seal and signature of the President, the AG said Mr Uhuru Kenyatta’s support for the BBI was personal.

“Any action by the President that does not bear his seal and signature is therefore done in his personal capacity as was the case in him supporting and promoting the BBI. The President did not forego or lose his basic rights and freedoms by virtue of taking his oath of office,” said lawyer Kamau Karori for the AG. 

Further, the AG admitted that Kenya’s Constitution has a basic structure outlined in Article 255 (1) but disagreed with the lower courts’ finding that the amendment must follow four sequential steps. 

The appellate and High Court judges had listed the steps as civic education, public participation, constituent assembly debate and ultimately, a referendum.

“With tremendous respect, we disagree with this position. Neither our Constitution nor its history contemplate the doctrine. Kenya has had a history of indiscriminate constitutional amendments,” said Mr Ogeto. 

He stressed that the Constitution itself did not impose any limit on the extent to which it can be amended and went on to ask the Supreme Court to clarify with finality whether the basic structure doctrine is applicable in Kenya.

Lawyer Karori stated that presidential immunity is granted to allow the head of state to  make decisions in the public interest without fear of being held liable for the decisions.

Proposed referendum

“Presidential immunity is granted to avoid subjecting the head of one arm of the government (the president) to proceedings before another arm of government, which would upend the principle of separation of powers. This would be inimical to the proper functioning of the government,” said Mr Karori.

He argued that the AG was not advocating absolute immunity or non-accountability of the president but for functional immunity to enable the President to effectively perform his functions without distractions.

For its part, the Independent Electoral and Boundaries Commission (IEBC) said it had the requisite quorum to conduct the proposed referendum.

The Wafula Chebukati-led commission said it could not be faulted as there was no  operative law defining the requisite quorum at the time of dealing with the BBI Bill. 

The Supreme Court judges heard that the High Court and appellate judges made a legal blunder in finding that the three commissioners who were available at the time lacked authority to consider the BBI Bill or verify the signatures collected in support of the intended referendum. 

Through senior counsel Githu Muigai, the IEBC said the Court of Appeal relied on a law that had been declared unconstitutional by the High Court in 2018. 

"IEBC was properly constituted and was at all times quorate and legally capable of undertaking its constitutional and statutory mandate,” said Prof Muigai as he faulted the Court of Appeal finding that “the quorum for the conduct of business by the IEBC is five commissioners”. The finding was based on the IEBC Act (2011) second schedule.

Prof Muigai explained that the said legal provision could not be relied on, having been nullified in 2018 following a petition filed by Katiba Institute. He added that no appeal had ever been lodged on the provision. 

Popular initiative

However, Prof Muigai said IEBC had a fallback option in Article 250(1) of the Constitution, which says "each commission shall consist of at least three, but not more than nine, members".

"It is the submission of the IEBC that the effect of such a declaration of unconstitutionality is that the subject provisions ceased to have legal effect and therefore both the High Court and the Court of Appeal could not place reliance upon them," said Prof Muigai. 

He also asked the Supreme Court to set aside the Court of Appeal’s determination that the IEBC is under obligation to confirm that public participation is undertaken by the promoters of a popular initiative before forwarding a Bill to the county assemblies.

Before hearing of the appeals, two lawyers walked out of the court after being blocked from addressing the judges.

Senior counsel Martha Karua and lawyer Dudley Ochiel walked out after Chief Justice Martha Koome ruled that they would not make oral arguments.

The advocates were representing some members of Linda Katiba, which had sued the government two years ago in efforts to stop the proposed changes in the Constitution.

Chief Justice Koome excluded the activists on grounds that they were not substantive respondents to the appeal.

The CJ ruled that since they joined the BBI case in the High Court as amici curiae (friends of the court), they should remain so before the Supreme Court. The hearing continues.