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BBI appeal hearing in session on June 29, 2021.


Uhuru can’t be president and Wanjiku at the same time, anti-BBI lawyers say

NAIROBI, Kenya July 1 – Five activists opposed to the push to amend the Constitution through the Building Bridges Initiative (BBI) process on Thursday mounted a spirited fight before a seven-judge bench of the Court of Appeal on why the cases lodged before it should be dismissed.

The activists led by Economist David Ndii and four others pleaded with the Daniel Musinga-led bench to have the High Court ruling that shot down the BBI process upheld in totality.

Through their lawyer Nelson Havi, the activists implored the court to safeguard the Constitution maintaining that any alteration of it would amount to its violation of the basic structure doctrine.

“A Constitution is supposed to be a permanent charter which is to endure for ages to come and not to be likely altered to meet the temporary expedience of political parties,” he said.

Havi maintained that five chapters of the Constitution that form the basic structure of the Constitution including the Legislature, Executive, Judiciary and the Bills of Rights ought not to be amended either by Parliament or Kenyans through a popular initiative.

“This is what the BBI Bill has done, to destroy, to dismember the basic structure of the Kenyan system. It has created an impure hybrid and presidential and parliamentary system,” he said.

Havi pointed out that it is a fallacy that the BBI intends to bring the aspect of separation of powers noting that the current 2010 Constitution has clearly stipulated and provided mechanisms that preserve the outlook of separation of powers in the three arms of government.

The Law Society President further poked holes into the BBI proposal that advocates for the creation of an ombudsman office in the Judiciary noting that the provision is at best archaic and that the installation of the “executive prefect” would interfere with the independence of the Judiciary.

“Parliament itself acknowledged this fault,” he said.

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Whereas the BBI Secretariat submitted before the court that Suna East MP Junet Mohammed and David Waweru were the promoters of the BBI Bill and not President Uhuru Kenyatta and former Prime Minister Raila Odinga, Havi said a state officer or a legislator cannot be a Wanjiku.

“The moment you become a President you cease being a person you become a state officer,” he said while submitting on the subject of the topic of the President of the Constituent power.

Havi was categorical that if the Head of State wanted to be part of the BBI he ought to have resigned from office.
“If the President wants to engage in the affairs of other lesser mortals he must abdicate,” he said.

Lawyer Esther Gawa who also represented the activists argued that the electoral body as currently constituted with three commissioners violated the Constitution by engaging in the activities of the BBI when it verified the signatures which were collected in support of the cause.

“The Commission cannot say that the provision requiring a quorum of five does not exist,” she said.

She argued that the electoral commission had no mandate to carry out the verification exercise of the signatures which were collected in support of the BBI process on grounds that they were overstretching their mandate.

“There is no legislation that allows IEBC to move with the business of voter registration,” she said.

The respondents in the appeal started giving their submissions Thursday until Friday.

The appealants who include the BBI Secretariat, IEBC and the President himself have already given their submissions through their lawyers.

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