Justice Joel Ngugi

Justice Joel Ngugi during the judgment on eight consolidated petitions challenging the BBI referendum last week. Prof Ngugi was the presiding judge.

| Dennis Onsongo | Nation Media Group

15 grounds for appeal as BBI battle resumes

Promoters of the Constitution of Kenya (Amendment) Bill, 2020, have listed 15 grounds of appeal against the High Court judgment that scuttled their plans to change Kenya’s supreme law, the Nation has learnt.

A draft memorandum of appeal — one of several expected to be filed in court this week — seeks to poke holes into the High Court bombshell that threw off balance the main proponents of the constitutional changes — President Kenyatta and the Orange Democratic Movement party leader Raila Odinga.

The memo argues that among other grounds, the five High Court judges misapprehended and ‘unreasonably’ limited the Presidency’s Constitutional and legal powers under Article 131 of the Constitution.

They “limited the role and responsibilities of the presidency in enhancing national unity. They reduced the office of the President to a mere spectator in the constitutional amendment process,” reads the draft.

They are also aggrieved by the High Court’s finding that the Building Bridges Initiative (BBI) task force and the Steering Committee were illegal with no powers to initiate constitutional changes through a popular initiative.

President Kenyatta and Mr Odinga’s teams spent the better part of the weekend studying the judgment, with an aim of filing a strong case, which, they hope, will turn the tide in their favour at the appellate court.

The third defendant

The Attorney-General, on behalf of the government, has already drafted a notice of appeal that will be lodged in court today, while the BBI Secretariat is also set to file a separate appeal within the week.

As the third defendant in the case, the Independent Electoral and Boundaries Commission (IEBC) is also expected to file its appeal, setting the stage for round two of a legal duel pitting BBI proponents against the Linda Katiba movement.

Sources within the main defendants in the case, the BBI Secretariat, indicate that they have reconstituted their legal team, led by lawyer Paul Mwangi and Arnold Ochieng.

“By tomorrow they will be ready. You will see them. They will be many. And we have seasoned lawyers,” said Suna East MP, Junet Mohamed, a co-chair of the BBI Secretariat.

BBI Secretariat to appeal High Court ruling that declared BBI process illegal

The duel at the country’s second highest court is a race against time since as per the law, a referendum cannot be held less than a year to the General Election.

This means the BBI proponents have up to August to implement President Kenyatta’s and Mr Odinga’s plan of amending the Constitution through a plebiscite.

A lawyer handling the matter, who spoke in confidence for fear of reprisals, said pending hearing and determination of the appeal, they will seek a stay of some of the 22 declarations High Court made.

The appellants argue that by declaring the BBI steering team unconstitutional and unlawful, High Court unduly limited the Presidency’s express powers and violated the doctrine of separation of powers.

Registered voters

They further argue that the judges, led by Justice Joel Ngugi, misdirected themselves in their finding that the constitutional amendment was initiated by the BBI Steering Committee.

 The court, they further argue, ignored and disregarded evidence of the more than five million signatures of verified registered voters that endorsed the constitutional amendment.

On the court’s findings that the President cannot use the popular initiative way to propose amendments to the Constitution, the appellants say the judges made extraneous and exclusionary definition of who can and who cannot promote constitutional amendment by popular initiative.

In regard to the court’s finding that the IEBC is not properly constituted to oversee a referendum, the appeal argues that the judges erred in elevating statutory provisions of the IEBC Act above constitutional provisions.

This is because the Constitution sets the quorum of the Commission members at three, while the IEBC Act says the quorum should be five members, so that it can conduct any business.

“The judges misapprehended Article 257(4) of the Constitution and thereby unconstitutionally and unlawfully imposed a non-existent requirement for the verification of signatures for purposes of a referendum. They erred in law in unreasonably subjecting the enjoyment and enforcement of constitutional rights and powers as conditional on the passing of legislation and regulations,” reads the draft.

On the creation of the proposed 70 parliamentary constituencies, the appellants believe that the judges misapprehended the meaning, scope and import of Article 1 of the Constitution, with respect to the process and criteria of establishing the number, delimitation and distribution of constituencies.

They also argue against the court’s finding that the proposed referendum should have multiple questions, because it intends to amend multiple clauses of the Constitution.

“The judges misdirected themselves in reading into Article 257(10) of the Constitution, the extraneous and unconstitutional requirement that each referendum question must be put to a vote in the referendum,” the appellants argue.

Kang'ata explains why referendum is impossible before August deadline

Another basis of appeal is on the court’s finding that the doctrine of the basic structure and eternity clause is applicable in Kenya.

Eternity clause

In the draft appeal, the appellants argue that the doctrine is alien to the provisions of Article 259 of the Constitution, which provides for the interpretative methodology of the Constitution of Kenya.

By adopting the principle of basic structure and eternity clause, the appellants say the court limited the people’s right to exercise their power to amend the Constitution and decision-making in a referendum.

“The judges erred in law in introducing an alien organ unknown to Kenyan laws described as the Constituent Assembly, as a criterion and threshold for the exercise of people’s sovereign right to a referendum. They unduly limited the scope of the popular initiative on who can or cannot initiate it,” say the appellants.

The appellants add that the court misapprehended the Constitution and the law by confusing popular initiative with initiation, rather than the decision-making power of the people in a referendum.

BBI Court

From Left: Lady Justice Teresia Matheka, Justices George Odunga, Joel Ngugi (Presiding) Jairus Ngaah and Chacha Mwita at a Court in Milimani Law Courts on May 13, 2021.

Photo credit: Dennis Onsongo | Nation Media Group

What proponents of constitutional changes will be arguing in court

1. The judges erred in law in adopting the basic structure and eternity clause doctrine which is an alien doctrine.

2. The judges imposed an alien limitation on the interpretation of the Constitution and thereby limited the people’s right to exercise their power to decision-making in a referendum.

3. The judges introduced an alien organ unknown to Kenyan Laws; the Constituent Assembly as a criterion and threshold for the exercise of people’s sovereign right to a referendum.

4. The judges limited the scope of the popular initiative and who can or cannot initiate it.

5. The judges erred in conflating popular initiative with initiation rather than the decision-making power of the people in a referendum.

6. The judges limited the Presidency’s Constitutional and legal powers and limited the role and responsibilities of the Presidency in enhancing national unity.

7. The Judges misdirected themselves in their finding that the constitutional amendment process was initiated by the BBI steering Committee.

8. The Judges erred in law in their finding that the BBI steering committee was an unconstitutional and unlawful entity.

9. The judges ignored and disregarded evidence before them of the more than five million signatures of verified registered voters that initiated the constitutional amendment process.

10. The judges misdirected themselves in making exclusionary definition of who can and who cannot promote a constitutional amendment process by popular initiative.

11. The judges erred in law in elevating statutory provisions (of the IEBC Act) above constitutional provisions.

12. The judges misapprehended Article 257(4) of the Constitution and unlawfully imposed a non-existent requirement for the verification of signatures for purposes of a referendum.

13. The judges erred in law in subjecting the enjoyment and enforcement of constitutional rights and powers as conditional on the passing of legislation.

14. The judges misapprehended the process and criteria of establishing the number, delimitation and distribution of constituencies.

15. The judges misdirected themselves in making the conclusion that each referendum question must be put to a vote in the referendum.

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