• Ogeto faulted the High Court judges, accusing them of making personalised attacks on the President that resulted in factually unfounded conclusions.
• 'It was improper for the judges to rule that the amendment Bill encroached on the power of the IEBC,' he said.
Image: Photos: EZEKIEL AMING'A
The BBI protagonists on Tuesday put up a spirited fight before a seven-judge bench to reverse a decision halting the BBI process to amend the Constitution.
Solicitor General Kennedy Ogeto was the first one to set forth grounds why the court should allow their appeal against a High Court ruling that BBI was unconstitutional.
The Court of Appeal bench included president Daniel Musinga, justices Hannah Okwengu, Patrick Kiage, Roselyne Nambuye, Fatuma Sichale, Gatembu Kairu and Francis Tuyoitt
They arrived at 9am for the hearing that continues on Wednesday.
Ogeto appealed to the court to right the wrong done by the five-judge bench that called the BBI illegal and a nullity and forbade a referendum.
He accused the judges of making personal attacks on President Uhuru Kenyatta, resulting in factually unfounded conclusions. They said it was not a proper people-driven or parliamentary process.
The Solicitor General argued that there was never any intention to make certain parts of the Constitution "unamendable", as the High Court had said.
"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 filed attempts to amend it two through popular initiatives and 20 through Parliament,” he said.
He argued the judges purported to amend the Constitution under the guise of interpretation, citing paragraph 474 of the judgment in which the High Court bench ruled that unamendable clauses will be determined by the court on a case by case basis.
He said if this flawed understanding holds, 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 each of the proposed amendment clauses ought to be presented as a separate referendum question.
He says this holding clearly contradicts Article 252 of the law, which identifies an amendment bill as subject matter for a referendum. He also said the Constitution gives a serving president absolute immunity from civil proceedings while exercising his official functions.
On a popular initiative, Ogeto dismissed the judges' ruling that states the popular initiative mechanism is exclusively available to the private citizen as opposed to a state organ or the president.
He said the judges effectively had disenfranchised nearly four million registered voters [who signed a referendum petition] under the pretext of nullifying 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 1 million registered voters,” he added.
Ogeto has 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 [but]for sure Wikipedia cannot be a reliable authority for anything serious,” Ogeto said.
Lawyer Kamau Karori, also for the Attorney General, told the court no evidence has been adduced to show President Uhuru Kenyatta was behind the initiative.
However, he added that the President has all rights like any other Kenyan, to participate in the political discourse, including to support or campaign for any cause.
“The president is nominated by a political party; he is entitled to support any cause that the political party supports and, therefore, he cannot be faulted for participating in the popular initiative as suggested by the learned judges,” Karori said.
He also submitted that the IEBC is properly constituted, dismissing the High Court declaration that the commission lacked a quorum to conduct core business.
“The quorum for the IEBC is set out in the Constitution, the people of Kenya decided that as long as they have three commissioners, they can conduct the business,” he argued.
He also said the High Court made a wrong finding on the issue of constituencies, arguing the Constitution does not give the IEBC the mandate to add constituencies.
The court has prevented the people to make the decision by themselves whether they pass it or not.
“It was improper for the judges to rule that the BBI amendment Bill encroached on the powers of the IEBC,” Karori said.
Senator James Orengo, representing ODM leader Raila Odinga and the BBI Secretariat, also asked the court to set aside the High Court ruling.
Orengo said the judges erred in law when they nullified the BBI process that had been endorsed by millions of Kenyans.
“If ever the court thought about the context about what the constitution-making process was all about, it was to provide lasting peace and formal government that will create a truly democratic and just society,” he said.
He argued that when it comes to the people, the court said because they are sovereign, they can have an existence outside the Constitution but under this Constitution, it is not possible.
“If that were true because all powers are donated, including judicial authority, my Lords, your powers are donated, Wanjiku can come to this court and order you to retire, but that's not how a democratic society can operate,” Orengo said.
Orengo further argued in order to amend the Constitution, you have to go over 10 hurdles ... so it's not an easy task.
The President can take the matter to the people, the only difference is while he has to identify what he wants to be taken to the people, the IEBC is required to formulate a question or questions into a draft bill.
Other than a repetition of the section, most of the matters amended through referenda were considered as forming issues of basic structures, Orengo said.
He also argued that every article in the Constitution is amendable so long as it’s within the law and procedures.
He also claims that the question of having basic structure never arose in the constitution-making process and if it ever did, that evidence should have been placed before the court.
“We should never use revolution as a way of bringing about constitutional change or bringing an amendment to the Constitution; Kenyans have been to the streets, they have suffered violence,” Orengo said.
He argued that decisions by the Judiciary should favour the exercise of political rights by the people.
“I want your Lordship to tell me if this is not lawmaking,” he said.
At one point, Orengo asked the bench to read the Bible story of Jezebel.
“My Lord, I will invite you to read in the Bible there is a lady called Jezebel; she was a vile satanic woman, but if you read other accounts, she has very good accounts and was a strong lady,” he said.
The hearing resumes Wednesday morning.