NAIROBI, Kenya, May 16 – Attorney General Paul Kihara has filed an appeal on the judgement on the BBI Bill delivered on May 13.
The application is also seeking to suspend the implementation of the High Court Orders pending the hearing and determination of the application as well as the hearing and determination of the appeal.
In his application, the AG said any move by the applicants to implement the judgement will render his intended appeal nugatory and cause him irreparable harm.
“Being dissatisfied with the decision of the five judge-bench consisting of Justice J.M Ngugi, Justice J.V Odunga, Justice Ngaah Jairus, Justice E.C Mwita and Lady Justice Mumbua T Matheka, intends to appeal to the Court of Appeal against the whole of the said decision,” he said.
Kihara added; “no prejudice will be occasioned to the petitioners in the event this Honourable Court stays the implementation of the orders in the judgement issued on 13th May 2021.
A five-judge bench in the Constitution and Human Right Court on Thursday ruled that President Uhuru Kenyatta violated the Constitution, particularly Chapter 6, when he initiated the process following his handshake with former Prime minister Raila Odinga.
READ: Raila urges calm following BBI invalidation, backs appeal
Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua termed the process as unconstitutional, singling out President Kenyatta for overreach.
The court faulted promoters for attempting to usurp powers apportioned to the Independent Electoral and Boundaries Commission on delimitation of constituency boundaries.
READ: Top lawyers endorse BBI ruling as an affirmation of Judiciary’s independence
In its ruling, the court declared the basic structure of the constitution could only be amended by invoking a four-phased process entailing, “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
Contrary to the position taken by the court, the BBI constitutional review process was found to have fallen short of the Primary Constituent Power, the court holding that the President overreached his mandate in promoting constitutional changes under a popular initiative.
“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,” the bench ruled.
A BBI steering committee gazetted in January 2020 was also declared an unconstitutional entity, the court holding that it lacked the legal capacity to initiate constitutional changes under Article 257 which sets out conditions precedent for an amendment through a popular initiative.
The court also issued a declaration invalidating “the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020” saying it was “done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power.”
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