• "This regrettable claim resulted partly from the learned judges reliance on Wikipedia,” Ogeto said.
• Ogeto is leading the AG legal team and will be assisted by lawyers George Oraro, Paul Nyamodi,Kamau Karori and Ken Nyakundi.
Image: EZEKIEL AMING'A
Solicitor General Kennedy Ogeto on Tuesday laid out nine thematic areas that the Attorney General will use in a bid to overturn the High Court judgement that nullified BBI.
In his submission to the seven-judge bench, Ogeto had appealed to the court to 'rewrite the wrong' that was done by the five-judge bench at the High Court which stopped the BBI process.
Ogeto argued there was never an intention to make certain parts of the Constitution unamendable as the High Court had ruled.
“If that was the case then the makers of our Constitution would have expressly stated so in the Constitution,” he said.
Ogeto said Chapter 16 has been very successful in safeguarding the Constitution against the culture of hyper amendment.
“Since the promulgation of the Constitution there have been approximately 22 failed attempts to amend it, two through popular initiative and 20 through Parliament,” he said.
It is his argument that the judges effectively purported to amend the Constitution under the guise of interpretation.
He cited paragraph 474 of the judgement where the judges ruled that unamendable clauses will be determined by the court on a case to case basis.
He avered that if this understanding will hold then the courts will have the role of vetting proposed amendments in accordance with the law yet there is no such role for the court in the Constitution.
Ogeto faulted the judges for ruling that each of the proposed amendment clauses ought to be presented as a separate referendum question.
He said this holding clearly contradicts Article 252 of the law which identifies an amendment bill as subject matter for a referendum.
He also argued the Constitution gives a serving President absolute immunity from civil proceedings while exercising his official functions.
On popular initiative, Ogeto dismissed the section of the ruling that states that the popular initiative mechanism is exclusively available to the private citizen as opposed to a state organ or his excellency the President.
He said that holding by the judges has disenfranchised nearly four million registered voters under the pretext to nullify alleged unconstitutional acts by the President.
“The essence of a popular initiative is that it has to be popular and satisfy the majorities stipulated in the Constitution, the initiative only becomes an initiative upon obtaining the endorsement of at least one million registered voters,” he added.
Ogeto also faulted the five judges who unanimously rejected BBI for using Wikipedia as an authority in their judgment especially on the issue of popular initiative.
“This regrettable claim resulted partly from the learned judges reliance on Wikipedia, they resorted to Wikipedia as an authority; for sure Wikipedia cannot be a reliable authority for anything serious,” Ogeto said.
Ogeto is leading the AG legal team and will be assisted by lawyers George Oraro, Paul Nyamodi,Kamau Karori and Ken Nyakundi.