• Both the High Court and the Court of Appeal shot down the push to amend the Constitution through the BBI.
• The Attorney General is challenging key findings of the lower courts that overturned the bid to amend the Constitution.
Image: FILE
Supreme Court judges will this week sit for a three-day marathon hearing of the Building Bridges Initiative(BBI) appeal case beginning Tuesday.
Both the High Court and the Court of Appeal shot down the push to amend the Constitution through the BBI, describing the Constitution (Amendment) Bill, 2021, null and void.
In his appeal, the Attorney General is challenging key findings of the lower courts that overturned the bid to amend the Constitution.
A full bench of the Supreme Court in November last year started by putting its house in order by issuing three rulings including giving directions on the filing of submissions.
They also set January 18, 19 and 20 as dates for the hearings where parties will present and argue their cases.
While parties often set out their own issues which they ask the court to determine, the Supreme Court judges said they decided to come up with seven issues on which they will allow parties to file their submissions in support or against.
“Having gone through the appeals and the responses, the court is of the considered view that the seven issues are what form the basis of the BBI appeals and which the parties need to address us on in their submissions,” Justice Isaac Lenaola said.
Key among the issues the judges will determine is the basic structure doctrine and whether it is applicable in Kenya.
The appellants also want the opinion of the apex court on whether the Constitution can only be changed by following four steps of civic education, public participation, constituent assembly debate and a referendum, all in sequence.
Both the High Court and the Court of Appeal declared the basic structure principle is applicable to Kenya.
It is on this basis that the judges of the lower courts declared the BBI unconstitutional for seeking to alter the basic structure without following the required order.
Attorney-General Kihara Kariuki whose appeal was filed by Solicitor General Ken Ogeto wants the apex court to overturn that decision and to declare that the Constitution of Kenya (Amendment) Bill 2021 complied with all requirements to warrant a referendum.
This push at the Supreme Court is the final bullet to save BBI whose proposal to expand the Executive would have had a huge influence on coalition formations for the 2022 succession politics.
“We want the Supreme Court to find that the Court of Appeal erred when they disregarded clear provisions in the Constitution on the steps required to amend the law and which were duly followed by the BBI secretariat,” Ogeto said in his appeal.
Among his grounds are that the Court of Appeal erred in declaring that the “basic structure” doctrine applies in Kenya and limits the power to amend the Constitution and that the president does not have the power to initiate constitutional changes.
Ogeto holds that the Constitution has provisions that provide that all clauses are amendable.
“We will demonstrate that the judges ignored the historical context of amending the Constitution and ended up with conflicting interpretation to limit the people’s power to change their Constitution,” he says.