•Uhuru and Raila are determined to have the Court of Appeal overturn the five-judge bench ruling that blocked the BBI process.
•The DP on the other hand has opposed the changes that could the Judiciary cede its power to the Executive terming the amendments unnecessary.
Image: PSCU
President Uhuru Kenyatta, his handshake partner Raila Odinga and Deputy President William Ruto have their eyes fixed on the Court of Appeal this week.
Uhuru and Raila are hoping the Court of Appeal will overturn the five-judge bench ruling that blocked the BBI process.
The judgement is a stumbling block in their 2022 succession plan.
Both are banking on the changes contained in the Constitution of Kenya (Amendment) Bill, 2020 which seeks to expand the Executive and Parliament.
But Ruto, strongly opposed to the BBI, has repeatedly held that the proposed amendments are unnecessary because the Constitution is only 10 years old.
Last week, Uhuru hosted Raila, Musalia Mudavadi (ANC), Kalonzo Musyoka (Wiper), Gideon Moi (Kanu) and Moses Wetangula (Ford Kenya) at State House Mombasa where he is understood to have assured them that BBI will sail through.
The President who has virtually endorsed Raila as successor wants the other big names to share jobs of deputy president, prime minister and two deputy prime ministers.
Image: CHARLENE MALWA
Legal and election experts have warned that a pro-BBI could put the country into an unprecedented crisis one year before the general election.
The experts who spoke to the Star said the ruling giving green light to the proponents of BBI who seek to amend the 2010 Constitution in a referendum will not only disrupt the IEBC but will also set the country on the path of chaos.
They say if the court of Appeal in a ruling to be issued on Friday will invalidate the High Court ruling and allow IEBC to conduct a referendum, will lay the foundation for postponing the much-awaited elections.
They also point out that wherever the ruling by the seven-judge bench, the matter will end up in the Supreme Court.
Lawyer and former IEBC commissioner Thomas Letangule says the ruling should be issued in the best interests of the country saying the electoral agency has run out of time to conduct a referendum and within months, a general election.
“The timelines that have been set by IEBC are so tight such that as a country we cannot afford a referendum and a general election. The pressing matter now for IEBC is to carry out mass voter registration,” Letangule told the Star on phone.
He said the 70 constituencies proposed in the BBI will be problematic, a recipe for chaos and court battles.
“The ruling to be rendered on Friday is either to validate or invalidate the findings of the High Court. The country has witnessed a relatively conducive and calmness since the matter ended in cour,” he said.
“We need the same peace to continue and the Court of Appeal must decide with that in mind.”
Makueni Senator Mutula Kilonzo Jr said a referendum before the general election is no longer tenable.
Speaking to the Star, the legislator who with his Wiper Democratic Movement party have been rooting for BBI said the referendum is now overtaken by events and should be shelved until after next year’s general election.
“We have run out of time and the threshold for increasing constituencies. ODM wants some commissioners removed. There is no guarantee that this is the end of the legal process, whatever the results,” he said.
“The country must now make a very logical election. We can’t have the election and referendum a year to the election. The referendum must give way.”
However, Homa Bay Town MP Peter Kaluma, said the Constitution does not give a timeline on when the referendum should be conducted.
The legislator who supports BBI said once the promoters have collected the 1 million signatures, IEBC is obligated to conduct a referendum on the issues proposed for changes.
“The bill has undergone all the process it was just awaiting the President to give notice and the IEBC to proceed to conduct a referendum,” he told the Star.
“Therefore, in the event, the Court of Appeal will overturn the findings of the High Court, IEBC will be required to conduct a referendum within a reasonable time.”
He said the electoral agency should prepare to conduct the plebiscite if the 7-judge bench will clear the way.
“It's the High Court Judgement which suspended the referendum process.”
Article 257 obligates that the Bill be mandatorily submitted to the people for a referendum if the judgement is reversed by the Court of Appeal.
“The fact that general elections are due within the year does not exempt the referendum under the Constitution,” he said.
The seven-judge bench made up of Court of Appeal President Daniel Musinga, Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuiyot has been on a 50 -day retreat writing the ruling to be delivered on Friday.
A five-judge bench in the High Court 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 task force—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.
Edited by Kiilu Damaris