Eyes on Judiciary as Justice Musinga set to appoint bench to hear BBI case

The newly elected Court of Appeal President Justice Daniel Musinga is expected anytime from now to constitute a bench to determine the next fate of the BBI process.

Justice Musinga has a pool of 11 judges to pick from but anti-BBI proponents insist they want a bench of 11 or at least seven judges. 

Musinga was elected to head the appeals court on Monday.

The Appellate court could give a lifeline to BBI or dim it forever by agreeing with the landmark findings of the High Court two weeks ago.

Currently, there are 12 judges at the Court of Appeal including Musinga.

The small number has been occasioned by President Uhuru Kenyatta refusal to appoint 41 Judges, 11 of whom were to join the Appellate Court.

The twelve judges are men and women with immense experience. Some of their rulings have previously been hailed as well-grounded.

The judges include Mohamed Warsame, Asike Makhandia, Fatuma Sichale, Wanjiru Karanja, Sankale Ole Kantai, Hanna Okwengu, Jamila Mohamed and Patrick Kiage.

Others are Gatembu Kairu, Roselyne Nambuye and Agnes Murgor.

Kathurima M’Inoti has since joined the East Africa Court of Justice and is the current Director of the Judiciary Training Institute.

Justice Fatuma Sichale was one of the judges alongside now Chief Justice Martha Koome in the now famous 2017 ruling that overturned the decision on IEBC returning officers.

Justices Nambuye and Kiage were on the bench that suspended the orders issued at the high court stopping the nomination process of the Chief Justice early this month.

However, as Musinga scratches his head to constitute the bench, anti-BBI litigants insist they want a huge bench.

In a letter to the Court of Appeal President, lawyer Nelson Havi who represents a group of Civil Society Actors, said they prefer 11 judges or at the very least seven.

"The 1st to 5th respondents request that you constitute a bench of seven or 11 Judges of the Court of Appeal to hear the three applications," Havi requested, also asking for a physical hearing of the cases.

This is also the position taken by the Third way Alliance that has asked Musinga to appoint a seven-judge bench.

Third Way Alliance cites the complexity of the case for their request.

“That you consider assigning this case to a minimum seven-judge bench considering the complexity, breadth and nature of the issues involved including the great public interest the matter has generated,” the letter reads.

Mutuma also wants the court to allocate at least two days for a full hearing for the oral submissions arguing that the matter is extremely complex.

President Uhuru Kenyatta and his handshake partner Raila Odinga have moved to the Court of Appeal to try and salvage the BBI Constitution amendment process.

Uhuru and Raila are determined to have the Court of Appeal overturn the five-judge bench ruling that blocked the BBI process as they plot to breathe life into their 2022 succession plan.

Two weeks ago, a five-judge bench comprising of Justices Ngugi, Odunga, Ngaah and Matheka, Mwita declared the BBI process to amend the 2010 Constitution as unconstitutional, null and void.

In their ruling, the judges who have been hailed for their findings said a constitutional amendment through a popular initiative is only a preserve of the ordinary Kenyans and not the executive.

They declared that the 14- member BBI Taskforce—which was headed by the late Garissa Senator Yusuf Haji was an unlawful entity.

In the hard-hitting ruling, the judges also ruled that Uhuru violated Chapter 6 of the Constitution on leadership and integrity noting that the President initiated and promoted a constitutional change process contrary to the provisions of the Constitution on the amendment.

The judges also said civil court proceedings can be instituted against Uhuru or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.