Seven judges to hear appeal against BBI judgment

Court of Appeal

Seven Judges will hear the appeal challenging the High Court decision that declared the BBI process null and void.

Photo credit: Richard Munguti | Nation Media Group

Seven judges will hear and determine the appeal filed against a recent High Court judgment on the Building Bridges Initiative (BBI).

This was announced by Court of Appeal President Daniel Musinga, who, along with Justices Roselyn Nambuye and Anne Okwengu, had convened with lawyers on Wednesday to give directions on the appeal.

Lawyers agreed with the court that the substantive appeal should be heard in full instead of hearing applications.

Senior Counsel James Orengo, who is appearing for BBI and ODM leader Raila Odinga, said the appeal they have filed is extremely urgent and needs to be disposed of expeditiously.

The BBI appeal

Pro-BBI leaders, including President Uhuru Kenyatta and Mr Odinga, are betting the Court of Appeal to intervene and halt the implementation of the High Court decision that stopped the push to amend the Constitution.

Acted in excess of his powers

The High Court had found that the President acted in excess of his powers and contravened the Constitution, in particular Chapter Six, when he initiated and promoted a constitutional change. A section of lawyers have warned that this finding could be used as grounds to impeach him.

The five-judge bench, in a judgement that was read virtually for more than four hours, said the 14-member BBI taskforce and the steering committee led by former Garissa Senator, the late Yusuf Haji, was an illegal entity. 

The bench led by Justice Joel Ngugi said the President made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue that is not available to him. He should have used parliamentary initiative by petitioning the National Assembly through the Attorney-General to consider the desired amendments, the court ruled. 

They described the BBI process as “a presidential initiative guised as a popular initiative”, and allowing it to be sustained amounts to having the Head of State as promoter and referee of his own initiative.

"President cannot be an initiator of and an umpire in amendment of the Constitution," said the court, adding that the BBI was muddled by conflict of interest.

Now, BBI supporters will be looking to the Appellate Court to salvage the plan birthed by the "Handshake" so that the effort and resources expended so far does not go to waste.

In his Madaraka Day speech, Mr Kenyatta went on the offensive against the Judiciary, accusing judges of constitutional rigidity that is denying Kenya the opportunity to address cyclic election troubles.

Referring to the recent High Court decision, President Kenyatta warned: “While I stand by the rule of law and I will always obey the decisions of the courts, I am also compelled by my position to heed the sovereign and supreme voice of the People of Kenya.” 

Additional reporting by Joseph Wangui and Patrick Lang'at

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