NAIROBI, Kenya, Jul 2 – The Court of Appeal will issue a judgement on the much-publicized Building Bridges Initiative petition on August 20.
The seven-judge bench which concluded a four-day hearing on Friday, that witnessed lawyers from both sides mount spirited arguments, will take 49 day to ready the ruling after declining a request to give an early date.
Prof Githu Muigai, representing the Independent Electoral and Boundaries Commission, had pleaded with the court to give an early date citing strict election timelines amid concerns a referendum would no longer be tenable.
Court President, Justice Daniel Musinga heard the matter filed by among others; the State,President Uhuru Kenyatta and former Prime Minister Raila Odinga, alongside colleagues Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuyyoit.
The appellants contested a Constitutional Court decision declaring the BBI constitutional review process sponsored by President Kenyatta and Odinga as null and void.
President Kenyatta who was among the appellant in the case in his final submission through lawyer Kimani Kiragu pleaded with the court to invalidate the High Court ruling that shot down the BBI process.
“At what point in time should the High Court have determined whether or not the President was acting within or outside the Constitution? In my humble submission, this should have been done at the onset and not the final judgement,” he stated.
Odinga through his lawyer James Orengo maintained that the BBI process is a popular initiative and asked the Court to allow the will of the people to reign.
“If the President can do these ordinary things including being a voter, I don’t see why he cannot be a promoter (of BBI). But we are not saying in this instance that he was the promoter,” Orengo said.
Paul Nyamodi, appearing for IEBC, noted that the Constitution can indeed be amended and asked the Court to dismiss the submissions that were made citing otherwise.
Prof. Githu Muigai termed the basic doctrinal as the challenge in installing Constitutionalism in the country .
He said the High Court was reduced to a philosophical arena in regards to the basic structure doctrine
“I have been in these corridors for over 3 decades. I have never seen a case like this. We don’t seem to agree on anything. Not what the facts were, not what the law is, not what the concepts are, not what the words mean, who the people are,” the former AG observed.
He faulted the argument by the Thirdway Alliance Party who stated that the BBI proposals were an attempt to enact the constitution afresh.
Githu said that 90 percent of the Constitution is going to remain intact and therefore it is an amendment and not a re-enactment
“If you ever want to know a weak lawyer, they start with, “The spirit of the constitution requires… why look at the spirit, while the Constitution speaks for itself?” he said.
Arbiter Isaac Aluochier told the Appellate Judges that his displeasure over what he termed President Uhuru Kenyatta’s contempt of court is the main reason for suing the President over his role in the Constitution amendment process.
He cited President Kenyatta’s speech during the Madaraka Day celebrations in Kisumu, where Aluochier said the President used the event to find the best way of attacking the Judiciary after stopping the High Court declared BBI process illegal.
“I was enjoying my quiet life of farming in Rongo. But when you see the country’s foundational law being mutilated, I had to come up and defend the Constitution … we are not paid by anyone, we are just Kenyans who love this country,” said the Arbiter
President Kenyatta ignited a war between the Executive and the Judiciary when he said that the recent judgment overturned the people’s will, diminished their power, and stifled efforts to fix ills that have bedeviled the country.
Aluochier added: “We just wanted to drive on one point, appellant Uhuru, as the President of this country, please obey the law. Stop disregarding this Katiba of ours, especially when you are the number one citizen of this country.”
“You took the oath to obey, respect, uphold, and defend this Constitution of Kenya. And you are not doing it. Instead, you are the one leading the process of amending and tearing apart this Katiba of ours, and these are the things that annoy me as a Kenyan.”