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The seven-judge bench when they heard the BBI appeal in June before they dismissed it on August 20, 2021.


Anti-BBI lawyers mount defense in Appeals Court

NAIROBI, Kenya July 1 – Tharaka Nithi Senator Kithure Kindiki has accused the Building Bridges Initiative (BBI) promoters of trying “to overthrow the Kenyan people and the Constitution” in what he equated to be their botched attempt to amend the Constitution using the backdoor.

Kindiki, who on Thursday submitted on behalf of two petitioners opposed to the constitutional amendment process through the BBI told the seven-judge bench of the Court of Appeal that the initiative was premised on a lie and that it was in fact a presidential initiative and not a popular one as purported.

“This was not a popular initiative, it was a presidential initiative which is not provided for in our Constitution and the attempt subsequently by the promoters to rope in the people at the tail end of the process to sanitize their illegal and unconstitutional venture must spectacularly fall on the facts and the evidence,” he said.

Kindiki maintained that President Uhuru Kenyatta and former Prime Minister Raila Odinga hijacked the constitutional amendment process to advance their own selfish political agenda.

He argued that “the fingerprints and footprints of the President are spluttered all over the BBI” citing the Head of State’s directives that led to the establishment of the BBI task force and the steering committee that was mandated to implement the recommendations of the task force.

“The President established the two committees via a Kenya Gazette which in our submission the Gazette is not a newsletter, newspaper nor is it a private publication but the official publication of the government and it is for that reason that the President was acting in his official position,” he said.

The former Senate Deputy Speaker observed that state machinery and resources were extensively used to popularize the initiative which he decried was marred by bribery and coercion.

He cited the resources which were used to collect signatures across the country in support of the document and the resources which went towards the final planning and unveiling of the BBI document at the Bomas of Kenya.

“All these events were presided over by the President and none of these meetings took place in anyone’s private home. The collection of signatures for this cause was aided to some extent by officials in the Executive arm of the government,” he said.

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The Professor in Law noted that President Kenyatta ought to have relinquished his duties as President, noting that by doing so he would legitimize his involvement in the BBI process.

He cited a period back in 2014 during which President Kenyatta relinquished his tools of official functions to his deputy William Ruto for one month and went to attend to his case at the International Criminal Court (ICC) in his personal capacity.

“The President had other avenues to initiate whatever amendments he wanted to do but he instead opted not to,” he said.

The BBI Secretariat legal team on Wednesday had stated that Suna East MP Junet Mohammed and David Waweru were the promoters of the BBI Bill and that President Kenyatta and Odinga were merely its supporters.

Kibndiki further submitted that public participation process on the initiative was suspiciously hurried despite the constitutional timeliness being clear on the process.

“Public participation cannot be presumed,” he said citing the manner in which the county assemblies passed the Bill in haste.

While urging the court to dismiss all the appeals in their entirety, Kindiki was clear that “I believe above the Constitution is the people and above the people is not the almighty God and perhaps blue sky”.

A five-judge bench of the High Court on May 2021 halted the BBI process whose proponents are now banking on the intervention of the Court of Appeal which is expected to rule on the initiative’s fate which was found to be unconstitutional, null and void.

President Kenyatta and Odinga argue that the proposed constitutional changes will end the winner-take-all structure of Kenyan politics, which is often followed by deadly violence.

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