Can a President be sued? Supreme Court sets date to hear BBI Appeal

Can a President be sued? Supreme Court sets date to hear BBI Appeal

The Supreme Court will give its ruling in January 2022 on an Appeal that was presented before it by Attorney General, IEBC and the BBI Secretariat.

This was after the Court of Appeal and the High slammed breaks on the Constitution of Kenya (Amendment)) Bill 2020, better known as Building Bridges Initiative (BBI) was shot down over its illegality.

Chief Justice (CJ) Martha Koome scaled up written submission for the BBI from 15 to 28 and tasked both parties to prepare for the submission. Both sides will have 20 minutes for submission.

The case will be heard from January 18, to January 20, 2022.

Since the promulgation of the Constitution of Kenya, this is the first case that has heavily litigated the content on the constitution of Kenya.

AG Paul Kihara filed his appeal on eight grounds that included court findings that basic structure doctrine is applicable in Kenya.

He is challenging appellate court finding that that civil proceedings can be instituted against the President or a person performing the functions of the office of the President in Kenya during their reign with regards to anything done or not done contrary to the constitution of Kenya.

AG is also appealing the ruling that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution.

Kihara is disgruntled with the findings that the BBI process contravened the constitution; in particular Article 10.

He is also be challenging the declaration that the constitutional amendment process was unconstitutional and a usurpation of the People’s exercise of sovereign power.

The  Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati appealed findings by the Court of Appeal over the constitutional composition, quorum and mandate of the Commission.

 “TAKE NOTICE that the IEBC, the Appellant being dissatisfied with the decision of the Court of Appeal given on the 20th day of August 2021 by Honourable Justices D. Musinga; R. Nambuye; H. Okwengu, P. Kiage, G. Kairu, F. Sichale and F. Tuiyot intends to appeal to the Supreme Court against such parts of the decision in relation to the findings by the Honourable Court touching on or relating to the constitutional composition, quorum and mandate of the IEBC,” reads the court documents.

In their ruling in August, Court of Appeal judges said that the BBI Bill was only but meant to hijack and alter the existing Kenyan Constitution through a popular initiative, thus null and void.

The 7-judge bench said the process was unconstitutional and that it was done not in the best interests of the people.

“The President has no powers under the Constitution to initiate changes of the Constitution,” said the Judges.

The Court of Appeal also ruled that the BBI steering Committee as appointed by President Uhuru Kenyatta was unconstitutional, null and void, and that should be disbanded.

Whether the Supreme Court thinks the same on both rulings by the High Court and the Court of Appeal or would vary the view, is what the country is waiting to hear. Should Martha Komme-led Court upholds the ruling, it will become law in the country on the items AG Kihara is challenging.

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Lawrence Baraza is a prolific writer with competencies in Digital Media, Print, and Broadcast. Baraza is also a Communication Practitioner currently spearheading Digital content on Metropol TV's Digital Desk.

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