TOUGH TASK

Legal nightmare: Why BBI appeal may not work for Uhuru, Raila

Court of Appeal will have to overturn all the 20 grounds cited by High Court

In Summary
  • Lawyer Joel Bosek said there are zero chances of success.
  • Ahmednasir said the chances of success at the appellate court are less than five per cent.
President Uhuru Kenyatta shares a word with ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019.
President Uhuru Kenyatta shares a word with ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019.
Image: COURTESY

The staggering blow dealt on President Uhuru Kenyatta and ODM chief Raila Odinga by the High Court on Thursday may not be cured by an appeal, some lawyers say.

In a landmark judgment, a five-judge High Court bench scuttled the BBI process, terming the three-year quest to amend the Constitution illegal, null and void.

The judges cited about 20 grounds for nullification of the process, including a declaration that the BBI task force that engineered the law change is an illegal entity.

Lawyers say it will take a legal miracle for the government to secure victory in the Court of Appeal and have all the cited grounds overturned.

“The chances of success at the Court of Appeal are nil,” said lawyer Joel Kimutai Bosek. “The reason is simple. For the referendum to happen, the government will have to succeed in overturning all the 20 grounds.”

Bosek likened the orders issued by the High Court to the Ten Commandments.

“You cannot break any of them and survive,” he told the Star.

This is also the position taken by Makueni Governor Kivutha Kibwana, Murang'a Senator Irungu Kang’ata and lawyer Ahmednasir Abdullahi.

 “Justices Ngugi, Odunga, Ngaah, Matheka, Mwita have shown unmatched patriotism. Their judgment has elevated Wanjiku to the pedestal she/he deserves. Very difficult to appeal,” he stated.

Kang’ata termed the High Court judgment “too comprehensive to be wholesomely overturned”.

“Even if overturned, BBI morality is fatally wounded,” he stated.

Ahmednasir said the chances of success at the appellate court are less than five per cent

However, lawyer Charles Kanjama said while it will not be an easy legal battle for the government, there is a possibility the appeal can succeed.

 “Judges differ on judicial philosophy. So, yes, there are chances of success,” he said.

The bench led by Justice Joel Ngugi cited many reasons why the entire process was illegal.

They said, for instance, Uhuru made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue available only to ordinary Kenyans.

The judges also ruled that IEBC lacked quorum as stipulated in law for purposes of carrying out referendum preparations, including verification of signatures.

They said the Constitution of Kenya (Amendment) Bill, 2020 cannot be subjected to a referendum before IEBC carries out nationwide voter registration.

“A declaration is hereby made that at the time of the launch of the Constitution of Kenya (Amendment) Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation and verification of signatures nor a legal framework to govern the conduct of referenda,” the bench ruled.

According to the judges, allocating 70 additional constituencies is illegal. They ruled that delimitation of boundaries is the mandate of the IEBC.

“A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to predetermine the allocation of 70 constituencies is unconstitutional,” the judgment states in part.

They also ruled that the Constitution requires all the specific proposed amendments to the Constitution submitted as separate and distinct referendum questions to the people.

“ A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020,”the judges decreed.