Opposition to efforts to amend the Constitution through the Building Bridges Initiative (BBI) has intensified, with a new appeal seeking to compel President Uhuru Kenyatta to refund taxpayer money spent on the campaign.
The new case, initiated by one petitioner in an earlier High Court case, arose after the five-judge bench failed to order President Kenyatta to return the cash.
Lawyer Morara Omoke, in a cross-appeal, says the bench, led by Justice Joel Ngugi, erred in law by declining his request for an order that the President return the money used in the “unconstitutional process of changing the Constitution”.
He says the proposed constitutional amendments were being promoted by the President through the BBI Steering Committee.
Mr Omoke believes an order for the recovery of the funds was supposed to ensue because the court found the President does not have the constitutional mandate to initiate constitutional amendments through a popular initiative.
Leadership and integrity
Another reason the court should have granted his request, he argues, is that judges found the President had violated the provisions of Chapter 6 of the Constitution on leadership and integrity.
He argues that the High Court should have ordered the Auditor-General to establish the amount of taxpayer money spent on promoting BBI.
Mr Omoke wants the Court of Appeal to issue six orders, among them one directing the President to personally refund to the National Treasury the public funds spent by the BBI Steering Committee in promoting the Constitution of Kenya Amendment Bill, 2020.
He also argues that the High Court should have taken judicial notice that huge amounts of public funds, including Sh4 billion in car grants to members of county assemblies (MCAs), had been used by the President in promoting amendments to the Constitution.
He also wants the appellate court to issue a declaration that prioritising constitutional amendments in the midst of the Covid-19 pandemic contravened Articles 10, 43 and 201 of the Constitution.
Surge in Covid-19 cases
He argues that the High Court also failed to take judicial notice of the surge in Covid-19 cases associated with political rallies held to popularise the bill.
The rallies, the lawyer argues, undermined the people’s right to the highest attainable standard of health and that prioritizing BBI violated the state’s obligations under Article 43 of the Constitution.
He also wants the court to declare that Parliament had no legal or constitutional capacity to debate or approve the bill in view of Chief Justice David Maraga’s (now retired) advise to President Kenyatta to dissolve the House.
Court of Appeal president Daniel Musinga is expected to constitute a seven-judge bench to hear the appeals. The hearing is slated for four days between June 29 and July 2.