- He said the learned judges of the Court of Appeal answered important questions the wrong way.
- On the issue of presidential immunity from civil proceedings, he said the court made a mistake in finding that civil proceedings can be instituted against the President during his tenure in office.
Image: FILE
The Building Bridges Initiative promoters on Tuesday made a final attempt before the Supreme Court seeking to revive the document that was shot down by the lower courts.
Attorney General Kihara Kariuki asked the seven judges to set aside the judgment of the Court of Appeal that nullified the BBI process.
Through Solicitor General Kennedy Ogeto, the AG faulted the Court of Appeal for declaring the BBI process as unconstitutional.
Ogeto told the seven-judge bench led by Chief Justice Martha Koome that their desire is that the lingering legal and constitutional questions in their appeal be determined and settled by the highest court in the land, ‘not just for today but also and perhaps more importantly for posterity.’
He said the learned judges of the Court of Appeal answered important questions the wrong way, and that they had the wrong, often ambiguous and in some cases, contradictory justifications.
“We have no doubt that our Constitution has a basic structure, but our Constitution tells us that it is amendable and it goes further to tell us how it should be amended. It does not impose any limit to its amendability,” he said.
He faulted the judges for agreeing with the High Court ruling that basic structure is amendable only through the primary constituent power which must include four sequential processes.
Ogeto further submitted that the learned judges of the Court of Appeal erroneously elevated the basic structure doctrine to a universal template for certain constitutional amendment or change.
He also said that even if the basis structure doctrine was applicable in Kenya, the absence of clarity on what the basic structure is would create legal and constitutional difficulty.
On the issue of popular initiative, Ogeto said the learned judges did not consider the consequence of their finding to a president, who having been elected on constitutional reforms, finds himself facing a partisan and hostile Parliament because he has a minority in the House.
He further said this scenario is not hypothetical as had been alluded by Justice Patrick Kiage in his judgement.
Instead, the solicitor, said such situations are a real possibility under the constitutional framework and requires contemplation and an answer.
On the issue of presidential immunity from civil proceedings, he said the court made a mistake in finding that civil proceedings can be instituted against the President during his tenure in office.
Lawyer Kamau Karori, acting for the AG, in his submissions, said the functions of the president are set out in the Constitution, and to avoid and subject the Head of State to this kind of suit, he is granted immunity by the Constitution.
On the issue of presidential immunity, Karori argued that the president has a right to initiate a popular initiative.
He said fundamental rights include political rights and they belong to each individual and are not granted by the state and that the president was also born with them.
According to the AG, the rights the president enjoys as a citizen are not rights that can be taken away and they are only subjected to limitation contemplated in the Constitution.
Independent Electoral Boundaries Commission also said it was properly constituted when it embarked on the BBI verification process that was challenged in court.
Through Githu Muigai, the commission faulted the two lower courts for ruling that they did not have quorum to initiate any process.
Muigai told the Supreme Court judges that IEBC was always properly constituted and it had quorum.
He further told the top court that the Constitution sets a minimum number of members you need in a commission and, at the time, there were three members.
“It sets the minimum members you need in a commission, and there were three and IEBC at this point had three. So it was not open to the court to find that IEBC was acting unconstitutionally,” Muigai said.
Muigai argued that it was not even open to the court to find that IEBC had no quorum.
“High Court and the Court of Appeal were in error in arriving at a contrary position,” he said.
He said an amendment of a statute is a legislative act, and while it is open to a court to declare an amendment to be unconstitutionally void, the declaration does not revive the former provisions.
The speaker of the Senate has also faulted the judges for ruling that there was not public participation in the BBI process.
He argued that the law is framed in a manner that ensures public participation runs through every stage of amendment through a popular initiative.
“This starts with collection of 1,000,000 signatures. We believe that before you collect 1,000,000 signatures, one million people should be aware of why they are giving their signatures,” he said.
BBI and ODM leader Raila Odinga also supported the submissions by the state, arguing that basic structure is not applicable in Kenya and can be amended.
Lawyer Jackson Awele said the president can initiate changes or amendments to the Constitution, adding the Constitution recognises three ways of amending it.
These include popular initiative, parliamentary initiative and a somewhat hybrid parliamentary initiative.
Lawyer Arnold Oginga said justice must not only be done but must be seen to be done.
He added that the courts of law ought not to interpret and apply the law in a manner that would lead to a predetermined outcome thereby negating already determined precedent on constitutional questions.
(edited by Amol Awuor)