Another legal showdown is looming after allies of President Uhuru Kenyatta and ODM leader Raila Odinga announced on Thursday they will move to the Supreme Court to salvage BBI.
They will challenge the rulings of the Court of Appeal on Friday last week and earlier the High Court that the BBI process is unconstitutional, null and void.
The BBI secretariat, the committee that shepherded the BBI Bill, warned of a national crisis if some key BBI proposals are all rejected.
A seven-judge bench of the Court of Appeal on August 20 concurred with the High Court ruling that declared the BBI process unconstitutional.
It said only the people can initiate a referendum.
The BBI bill also contained attractive proposals for more seats in an expanded Executive that could lure election coalition partners.
The BBI secretariat, which was among appellants at the Court of Appeal, said it is dissatisfied with the verdict and wants to proceed to the apex court to pursue the matter to the ‘very end'.
Secretariat co-chairs Junet Mohamed and Dennis Waweru identified five issues on which they will base their Supreme Court arguments.
“We wish to inform the country that as a secretariat, we shall be supporting the appeal by the Attorney general at the Supreme Court on the BBI,” they told a press conference at the BBI secretariat.
They were with BBI lawyer Paul Mwangi and Kajiado Central MP Elijah Memusi.
The President on Monday had said BBI was part of his legacy plan to unite the country and termed the Court of Appeal ruling misguided by politics.
The secretariat cited gender fairness, fighting corruption, correcting social and economic inequities, reviving the economy and ending the cycle of electoral violence.
“We want to keep pushing because we are determined to ensure that some of the very novel proposals in the BBI are not lost,” Mohamed and Waweru said in a statement.
While appreciating the herculean task ahead to overturn the seven-judge ruling of the Court of Appeal, they said they are determined to go all the way to to salvage the initiative.
“...and if they (proposals0 have to be lost, it must be known that we made our best efforts to secure them,” they added.
They said they will instruct their lawyers to be part of the Attorney General Kiharaka Kariuki’s appeal.
The AG also appealed the High Court ruling issued in May
On Thursday, the BBI Secretariat met the AG before making the announcement, signalling the blessings of the President on the renewed push to amend the Constitution.
Sources told the Star the AG could be moving to the Supreme Court as early as Tuesday next week to lodge the appeal.
“There are many contradictions in both the High Court and Court of Appeal rulings that will create confusion and legal chaos if not settled with finality," the Secretariat said.
Waweru and Junet said Kenyans deserve clarity on the Basic Structure Doctrine, which the courts said protects certain aspects of the Constitution from being amended in a way that changes the structure.
Two such BBI proposals would create the positions of a prime minister and two deputies and allow the president to select Cabinet members from among MPs.
“We feel that as it is, the Judiciary has amended the Constitution of Kenya and written processes into it that Kenyans did not discuss or vote on,” the BBI team said.
They added, “It has also literally, unilaterally and mischievously deleted Chapter 16 that allows an amendment to this Constitution by a popular initiative.”
The Secretariat denied a favourable ruling at the apex court would interfere with next year's general election date.
“The BBI process is a different issue from the date of the next election. We are concentrating on the ruling and this does not interfere with the general election,” Junet said.
They said they want the Supreme Court to pronounce itself on how the country would move forward after former Chief Justice David Maraga declared Parliament unconstitutional without adhering to the two-thirds gender principle.
“There is no other way to resolve this matter. All other previous attempts have failed. It is impossible to constitute a new Parliament without the solution to the gender equation,” they said.
Maraga called for dissolution of Parliament as it had not passed enabling legislation to implement the two-thirds gender requirement.
“This needs urgent attention and the solution of BBI is the only viable solution in our view.”
It was not clear if DM boss Raila had given the team the nod approval to proceed with the appeal. Last week he said he would not appeal and focus instead on campaigns for 2022.
The BBI team cited what they termed positive pronouncements by the Court of appeal, including affirmation that the BBI taskforce and BBI steering committee were legal entities.
They also praised the court for affirming that Junet and Waweru — and not President Kenyatta and Raila were the promoters of BBI.
(Edited by V. Graham)