Attorney General Kihara Kariuki has lined up twin court applications intended to put the BBI train back on track pending appeal of last week’s judgment that stopped the constitutional review plan.
The AG’s office yesterday filed one application at the High Court seeking to suspend implementation of the Thursday judgment, while Solicitor General Kennedy Ogeto was by the time of going to press preparing to lodge a second application at the Court of Appeal.
In the first application filed at the High Court, the government’s chief legal adviser wants the court to stay execution of its own orders pending the filing, hearing and determination of the intended appeal.
The rules of the appellate court allow the High Court to suspend implementation of its own judgment to mitigate its effects so that a litigant can exercise his or her right of appeal. The stay is usually limited for the period that the litigant takes to file the appeal.
However, the stay order is not granted ex-parte and AG Kariuki is set to face opposition from the successful petitioners, who are eager to enjoy the outcome of the monumental judgment.
In the second application at the Court of Appeal, the Attorney-General wants to be granted stay orders pending the hearing and determination of the intended appeal.
For the court of appeal to grant stay, the applicant is usually expected to demonstrate that he has an arguable appeal and that he will suffer irreparable harm if the High Court judgment is executed.
The AG argues that should he be denied the stay order, the High Court judgment will be implemented, rendering the intended appeal nugatory and causing him and Kenyans at large irreparable harm.
Through Solicitor General Kennedy Ogeto, the AG says the eight petitioners will not suffer any prejudice in the event the court suspends implementation of the judgment.
Meanwhile, the Independent Electoral and Boundaries Commission (IEBC) chairman, Wafula Chebukati, said the polls agency will also file an appeal against the High Court judgment.
Mr Chebukati said the Commission has engaged its lawyers and the appeal will be filed “in the course of the week.”
In its appeal, he said, the commission will be challenging a declaration that it has no quorum to conduct its business.
The High Court declared that since April 2018, when three IEBC commissioners – vice-chairperson Connie Nkatha Maina and commissioners Margaret Mwachanya and Paul Kurgat – resigned, the polls’ agency has been conducting its business without the requisite quorum of five commissioners.
Vocal commissioner Roselyne Akombe had resigned earlier, in October 2017, days to the repeat presidential election, claiming the commission had become a competition of political interests.
The exit of the four left the chairperson, Wafula Chebukati, and two commissioners in office.
According to the five-judge bench, the Second Schedule of the IEBC Act provides that the quorum for the conduct of business at a meeting of the IEBC is at least five members. “In our view, the statute is clear: the IEBC requires five commissioners to conduct any business. The statute does not distinguish between ‘policy’ and other business,” said the judges.
But Mr Chebukati said in 2019, the same court had found that the three members of the IEBC can conduct business other than making “policy decisions” when its membership is below the minimum five stipulated in paragraph 5 of the Second Schedule.
"Justice Wilfrida Okwany ruled that Article 250 of the Constitution applies to the commission. It states clearly that the quorum is a minimum of three commissioners, so IEBC has mandate up to now. The High Court has taken a different approach and we want the Court of Appeal to determine which judgment should suffice," said Mr Chebukati.
Yesterday, lawyer Paul Mwangi gave a glimpse into their arguments to rescue the Building Bridges Initiative as he disclosed they will present over 10, 000 pages of documents to the Court of Appeal.
Mr Mwangi, who is filing the appeal for ODM leader Raila Odinga and the BBI national secretariat, said they will submit a letter by Mr Chebukati to all county assembly speakers to demonstrate President Uhuru Kenyatta was not the sponsor of the constitutional amendment Bill.
“This case had a lot of issues and some of them were glaring. For instance, the court kept insisting that the persons who were promoting the initiative were the president and the BBI taskforce. We have a letter here written by the IEBC chairman Wafula Chebukati to all county assembly speakers, showing that the promoters of the popular initiative were Dennis Waweru and Junet Mohammed,” Mr Mwangi said, referring to the BBI secretariat co-chairs.