The Attorney General Paul Kihara and the Independent Electoral and Boundaries Commission (IEBC) have moved to the Supreme Court to challenge some decisions which were made by the Appellate Court on August 20 when the Constitution of Kenya (Amendment)) Bill 2020, better known as BBI was shot down.
AG Kihara filed his appeal on eight grounds that included court findings that basic structure doctrine is applicable in Kenya.
He will also be 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 will also be challenging the declaration that the constitutional amendment process was unconstitutional and a usurpation of the People’s exercise of sovereign power.
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On the other hand, IEBC is appealing 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.
