Supreme Court adjourns BBI Appeal hearing, sets date for judgement
The Supreme Court of Kenya has adjourned its sitting after three days of hearing the Building Bridges Initiative (BBI) appeal which was filed by the Attorney General and Independent Electoral and Boundaries Commission (IEBC).
The Apex Court Chief Justice Martha Koome dismissed a report by NTV that the judgment would be delivered on February 14, 2022.
CJ Koome, rather, said the bench will give notice on when the judgment on the BBI appeal shall be delivered.
“I do not know where NTV got the date of 14th of February. I am not going to enter into that but you will be given a notice on when the judgment will be delivered,” said the humble charismatic CJ Koome.
It will be a waiting moment to hear the ruling which is centered around two political factions in the country, with President Uhuru Kenyatta and chief of opposition Raila Odinga’s side pitting themselves against Deputy President William Ruto’s.
Government representation through Attorney General Paul Kihara appealed the Court of Appeal ruling which upheld the High Court’s that the initiative was unconstitutional, null, and void.
Since the promulgation of the Constitution of Kenya in 2010, this is the first case that has heavily litigated the content on the Constitution of Kenya.
AG Kihara filed his appeal on eight grounds that included court findings that basic structure doctrine is applicable in Kenya.
He is also challenging appellate court finding 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.
The Court of Appeal and the High Court ruled that the President can be sued in his personal capacity during his tenure in office for anything done or not done.
The government (Uhuru Kenyatta), through Lawyer Waweru Gatonye, said the lower courts erred in law by finding that a sitting president in Kenya can be sued.
Gatonye told the court that the appellate court came to this conclusion even though the President had been sued not in respect of a private or personal matter but in respect of what he did as a head of state.
“If it were that it was allowed for every Tom and Harry to file suit against the President, it would distract him from performing the more important duties for running the state,” Gatonye said.
IEBC on the other hand appealed findings by the Court of Appeal over the constitutional composition, quorum and mandate of the Commission.
Some analysts say that even if the Supreme Court sides with the government and allows the proposals to be put to a public vote, there will likely not be time to hold a referendum before the August election.