Uhuru, Raila referendum in jeopardy as appeal ruling set for late August

The seven-judge bench hearing the BBI appeal has said it will take 50 days to make a ruling in an announcement that is increasingly closing the window for a referendum before 2022.

Court of Appeal President Daniel Musinga said they will deliver the judgment seven weeks from today on August 20.

The IEBC, which on Friday affirmed that the the next election will take place on August 9, 2022, has already announced its roadmap to the polls.

Official campaigns are to kick off in April, which may complicate matters for President Uhuru Kenyatta and his handshake partner Raila Odinga, who are banking on the changes to craft their succession matrix.

The proponents of the BBI-led bid to amend the 2010 Constitution had initially scheduled the national referendum to be held by June but the High Court slammed breaks on it.

The August 2022 General Election is fast approaching and election experts have warned that the plebiscite is no longer tenable.

Prof Githu Muigai pleaded with the court to give an early date because of the  IEBC timelines they have.

However, Justice Musinga said they will not change the date.

Justice Musinga will retreat with his colleagues Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuiyot.

Justice Musinga thanked all the parties who have been in court battling it out since Tuesday this week seeking to persuade the court to rule in their favour.

The judge also noted that they have voluminous documents that they must plough through in order to reach a determination.

The case has over 20 active parties who have each filed submissions and list of authorities that the judges have to go through.

BBI PROTAGONISTS' CASE

• The court erred in law by finding that the commission lacks quorum for the performance of its mandate
• The Judges erred in finding that there was no legal framework for the conduct of referendum yet there exist provisions covering the full spectrum of the process.
• The judges erred in finding that IEBC had no obligation to ensure that the promoters of the Bill had complied with the requirements of public participation before transmitting the BBI bill 2020 to County Assembly.
• A president has absolute immunity and cannot be sued either in civil or criminal proceedings as long as he is still in power.
• The judges condemned him unheard by issuing orders against him when he was never served with the petition at the high court.
• Suna East MP Junet Mohammed and Dennis Waweru were the true initiators of BBI and not the President.
• The Constitution of Kenya has no basic structure.

BBI OPPOSERS' CASE

• The president violated the Constitution by initiating the BBI process saying he has no mandate to institute constitutional amendments.
• The court should order the president to refund public funds used to spearhead the BBI process
• They argue that the Constitution has a basic structure and its unamendable
• They argue that IEBC lacks quorum to carry out their official mandate.
• Accuse IEBC of failing to carry our proper voter signature verification on the 4 Million signatures collected from Kenyans who supported BBI Bill.
• They also argue that the BBI amendments should be reduced into one referendum question.
• They argue that there was no public participation in the BBI process.

In submissions Isaac Aluochier castigated President Uhuru Kenyatta for breaking the law asking the judges to uphold the high court ruling.  “Do the job Kenyans put you in those offices to do uphold, respect, defend our constitution & don’t let anybody, especially a mere employee of ours, “hata kama yeye ni employee number 1” he cannot ride over us. He must obey & follow our law,” he said.

Aluochier said Uhuru was trying to take us back to the old days before the 2010 constitution by his current actions.

He claims that in 2012, President Uhuru was taken to court in Mombasa and was found to have contravened chapter 6, article 77 and refused to resign from KANU.

“He remained deputy prime minister, Finance. If law had been followed, Uhuru would have never been president,” he said.

He submitted that the constitution is not confused about single or multiple amendments

“The amendment bill is dead on arrival, it has over 73/74 proposals. Dennis Waweru & Junet have given a bill with 74 different amendments, they need over 74 Million signatures,” he said.

Aluochier told the court that he indeed served the president dismissing the argument by his lawyers that he was condemned unheard.

• NARC Kenya Party Leader Martha Karua claims that the political class is using Building Bridges Initiative to cling to power.

 In her submissions to court, Karua says while pretending to observe the constitution, the political elite will use amendments and constitution to ensure that they extend their stay in power and concentrate power in their hands.

“It is clear to me that modern dictators especially in Africa are using the constitutional amendment as a special vehicle to claw away on civil liberties and democratic gains,” she said.

Karua says the Constitution exist to limit the excesses of authority but this does not appear to be understood or taken into consideration by the executive in Kenya including many state entities and state officers.

“The constitution of Kenya 2010 recognized the danger of this behavior by the political elite and if you look at the history which is the CKRC report attached in court by the AG you will see the fear Kenyans had in the making of the constitution,” she said.

It was her submission that as a country e are yet to implement our 2010 constitution which is still a work in progress.

“Kenyans knowing that the political class will be a hindrance to the faithful implementation of the constitution gave to the court powers to interpret and determine whether anything done under the constitution is constitutional,” she argued.

She defended the ruling by the five judges of the high court saying they were only discharging their duties as stipulated in law.

“It’s the duty of this court set limits as demanded by the constitution of the authority by the political elites, all the arms of government derive their power from the people and this court has the last word on the interpretation of the constitution,” she said.

She told the court that she was a member of the Parliamentary Select Committee with senior counsel James Orengo and part of that time she was also the minister of Justice.

She submitted at that time what the committee of experts was doing was to rely on all the documents given by Kenyans to resolve the issues and to ensure that the review process strictly reflected the will of Kenyans

“When we are told that the 2010 constitution is a political settlement, far from it, it actually reflects the will of Kenya,” she said

“Yes, there were political settlements in Naivasha and those settlements relied to the system of government to the form of devolution,” she said.

Karua said even in resolving the political system issue as part of the group in Naivasha they did not go beyond the suggestion given to the committee of experts.

“We just picked the presidential system from among the three options hybrid, parliamentary presidential even that was not far from the wishes of the people,” she said.

Karua said the political party that she lleads and several others had actually presented to the COE for a presidential system.

“That choice was influenced by the views of Kenyans it was not merely the wish of the politicians,” she said.

She asked the judges to ignore all statements that have been made extraneously by the appellants claiming some of them have alsready predicted the outcome of the appeal.

• Senior Counsel John Khaminiwa said President Uhuru Kenyatta cannot be a beneficiary of court orders when he has refused to swear in judges.

Khaminwa has asked the appellant judges not to consider the appeal filed by the president because he has disobeyed court orders.

“While he was in Kisumu during Madaraka Day he made certain remarks about judges, he has failed to gazette two judges involved in this case at the high court Justice George Odunga and Justice Joel Ngugi,” Khaminwa said.

He submits that when one must go to court with clean hands but the president has not come with clean hands at all.

“I am humbly urging that you borrow a leaf from SA and India, tell him(the president) we shall not fear you, the orders that were made at the high court must stand he has deliberately refused to swear in judges,” he said.

“My Lords it’s my humble submission that when you are coming before a court you cannot despise a judge and at same time you appear before a judge and expect that judge to give you orders.”

“When you have a president who is not obeying court orders and demeaning judges before the public this court must stand firm and say to him No we shall not hear you we will not give you orders,” Khaminwa submitted.

He further argued that the Kenyan constitution is unamendable and should not be amended.

Khaminwa has further said some of the lawyers representing BBI team whom he knows personally don’t stand for what they submitted in court.

“I know them, they were saying things that they themselves don’t believe in at all I happened to know them they are my friends I eat with them and I know what they stand for,” he said.

He also submitted that its very unfortunate that we don’t have a selfless politician in Kenya claiming that the crop of politicians in this country is very poor.

“Most of them are job seekers they stand absolutely for nothing as you can when they are campaigning they do not tell anybody what they will offer to do when they come into power,” he said.

It is his argument that the nearest selfless politicians we had are the late Kenneth Matiba and Wangari Maathai.

Khaminwa said we don’t need to change the Constitution in order to sort the issue of post-election violence because it’s the politicians who instigate this violence

“Whatever problems we have in this country have absolutely nothing to do with the constitution they have nothing to do with law, they have everything to do with ourselves and particularly the political class,” he said.

He urged the court to throw out the appeal filed by the four appellants because it lacked merit.

”I urge you very respectfully to throw out the appeal it has no merit absolutely none the submissions made were pedestrian submissions were not in good faith instead am inviting you to uphold the judgment of the high court and improve on it,” he said.

• Lawyer Christian Andole has urged the seven-judge bench hearing the BBI Appeal to order President Uhuru Kenyatta to personally refund tax payers money used in the illegal process.

Andole represents Morara Omoke who filed a cross appeal against sections of the high court judgment delivered in May.

Andole argued that the five-judge bench at the high court erred in law when they failed to order the president to refund the funds used in the BBI process.

“The High Court’s finding and declarations were sufficient for an order to make good the loss of public funds no evidence was needed for that order to be made,” Andole said.

He argues that its strict liability and no evidence was needed for that order to be issued however if any evidence was needed it was the evidence in the special knowledge of the state.

“I also invite the court to look at the doctrine of public trust which anchored in article 73(1) and article 1,” Andole said.

“I am afraid that the liberties of Kenyans and the eliminable rights of the ordinary mwananchi would be suspended by the thread so slender than the hair strand that held the sword of the imperial King dinoceous over the heads of demigods,” he said.

On the issue of who initiated the popular initiative, Andole says there is a clear delimitation of who serikali is and who Mwananchi is.

“My Lords and Ladies, the grave digger in Langata, the shoe shiner at upper hill, the beach boy in Watamu, the pregnant woman in Pumwani these are the people these are the wananchi not a person bearing the title honourable or his excellency,” Andole says.

He submits that any persons bearing a title honorable or his excellency purporting to be the people or mwananchi is a wolf in sheep’s skin

Andole has accused the BBI team of lying to court on who initiated the BBI initiative by saying its Dennis Waweru and Junet Mohammed.

He tells court that the attorney general in one of the court documents said the initiative is the BBI initiative which is a voluntary alliance of political parties

“There have been conflicting narrations of who is the promoter or the initiator of BBI to that extent the exact finding that the court should have is whether the appellant have approached this court with clean hands to warrant upsetting the decision of the high court,” he said.

REBUTTAL 

In a rebuttal, the AG, IEBC, BBI/Odinga and President Uhuru urged the court to quash the orders of the high court.

Lawyer Kimani Kiragu representing the president asked the court to dismiss Andole’s argument for the president to refund public funds.

He argues that there has been no evidence of the misuse of the said funds by the president in order to get the orders sought.

Lawyer Waweru Gatonye said Aluochier was very emotional because he was told that he had not served the president.

Gatonye maintained that his client president Uhuru has never been served directly or in any other way as is required by law.

Lawyer James Orengo said, "We are here not address theoretical questions hypothetical questions, we are here to address concrete questions of law, basic structures of doctrines, the question of popular initiative and public participation."

On the contentious issue of popular initiative, Orengo said Article 257 is about qualification and attaining the threshold for a popular initiative.

Orengo said even though he president did not initiate the BBI process, nothing stops him from being a promoter.

He also said it was improper for parties in the case not call each other names.