- Uhuru and Raila are on the same side, pushing to have the Court of Appeal overturn the High Court ruling that declared the BBI process unconstitutional.
- Together they cite at least 36 grounds for the court to declare BBI constitutional.
Image: TWITTER/RAILA ODINGA
President Uhuru Kenyatta and ODM boss Raila Odinga have launched a legal battle to salvage the BBI process, citing 36 grounds for the Court of Appeal to declare it constitutional.
The duo have given a blow-by-blow account of why the judges should overturn a High Court ruling that declared the BBI unconstitutional, null and void.
The Independent Electoral and Boundaries Commission has also lodged a separate appeal.
The agency wants the Appeal Court to annul the High Court declaration that the three-member commission does not have a quorum.
The last time the country witnessed a high-stakes legal battle was during the 2017 presidential petition at the Supreme Court that pitted Raila against Uhuru.
In their appeals filed in court, Uhuru and Raila are now working together in a major battle against anti-BBI forces.
A seven-judge bench is set to hear the appeal from June 29 to July 2.
Legal experts have warned the appellants require a near miracle to overturn all the 22 declarations contained in the landmark ruling by the five-judge bench.
President Uhuru on Tuesday launched an attack on the Judiciary during his Madaraka Day speech. He called for the spirit of the law to override the letter of the law in overturning the High Court ruling..
On Wednesday, the Court of Appeal held a management hearing on the case and the President's comments on the Judiciary were mentioned.
Appeal Court president Daniel Musinga, without naming anyone, said he wanted the proceedings of the BBI case to be conducted with the dignity required.
"Let's us be respectful with each other, let us not begin to prosecute this matter in the media," the judge said.
Uhuru had argued that the High Court decision that quashed the BBI process risks slowing development and quest for inclusive politics. He urged the Judiciary to reconsider its stance on the BBI.
The President has outlined 17 grounds to have the ruling reversed. On some of the grounds, he argues that the judges made a mistake in making declarations with far-reaching consequences about him despite the fact that he was not a party to the proceedings.
The High Court faulted him for his involvement in the BBI Bill.
Uhuru is also battling a ruling that declared him guilty of violating Chapter 6 of the Constitution on integrity by initiating and promoting a constitutional amendment process under Article 257 which is outside his purview.
The President decided to hire a private lawyer, Waweru Gatonye, to fight sections of the High Court judgment that adversely affected him as a person.
Among the arguments, Uhuru, through Gatonye, says the five-judge bench erred in law and fact by failing to adopt a holistic and contextual interpretation of constitutional provisions.
These provisions, he says, concern the powers and exercise of presidential authority to meet constitutional aspirations and values.
"The learned judges erred in fact and law by failing to appreciate and find that the President, although named as a party to the suit, was not ceased [sic] to be a party to the subsequent proceedings in the suit at the elections made by petitioners,” Uhuru's court papers read.
The President has also appealed against the findings by the judges that the President of the Republic of Kenya can be sued in a civil court.
He argues the judgment should be suspended because the judges failed to appreciate the scope and extent of the constitutional doctrine of presidential immunity granted by Article 143.
Raila, who is being represented by Siaya Senator James Orengo and Paul Mwangi, has raised 19 grounds in a joint appeal with the BBI secretariat.
Raila and the BBI secretariat argue, among other issues, that the High Court judges erred in their finding that the basic structure in eternity clauses and un-amendability doctrines are applicable under the Constitution.
They also argue the judges erred in fact their findings that the Constitution of Kenya (Amendment) Bill, 2020, was promoted by the President.
Raila argues the judges erred by disregarding the evidence pertaining to the BBI Secretariat's role as the promoters of the BBI Bill.
“The learned judges misapprehended Article 257(4) of the Constitution of Kenya 2010 and thereby unconstitutionally and unlawfully imposed a non-existent duty for verification of signatures over and above verification that the constitutional amendments initiative is supported by one million registered voters” Raila and the BBI secretariat say.
The former prime minister argues the judges preempted and usurped the people's sovereign power exercised at a referendum.
The people's mandate, Raila said, includes determining the merits, process and propriety of establishing the number and distribution of constituencies under the Constitution.
Attorney General Kihara Kariuki has raised 31 grounds of appeal. Through lawyers George Oraro and Ken Ogeto, he argues that the judges erred in law by finding the administrative procedures developed by the IEBC were formulated without public participation.
This finding, they say, is contrary to the evidence on record and the applicable law regarding administrative procedures as being distinct from statutory instruments.
“Even if the Basic Structure doctrine applied in Kenya, which is denied, the learned judges of the High Court erred in law and in fact by failing to demonstrate how various provisions of the Constitution of Kenya (amendment) Bill, 2020 affected the purported basic structure of the Constitution of Kenya,” the AG argues.
The AG also argues the judges failed to appreciate and consider the BBI bill arose out of a proposal by the people through a consultative process.
The lawyers pushing for the BBI process are likely to work together in developing a strong case for the initiative.
President Kenyatta’s Madaraka Day remarks, which seemed to renew attacks on the Judiciary, were on Wednesday brought to the Court of Appeal’s attention.
Lawyer Dudley Ochiel, representing the Katiba Institute, sought the court’s intervention following the President's statement on the eve of the hearing.
Ochiel said the comments suggested the President's disgruntlement with the Judiciary despite the courts being independent of any form of coercion by the Executive.
(Edited by V. Graham)