Attorney-General Kihara Kariuki on Tuesday morning put up a spirited fight before the apex court in a bid to revive the annulled Building Bridges Imitative (BBI) process.
The Court of Appeal in August upheld the High Court ruling that BBI is null and void and its processes were unconstitutional.
Through Solicitor General Kennedy Ogeto, the AG faulted the Court of Appeal for declaring the BBI process unconstitutional.
Ogeto told the seven judges, led by Chief Justice Martha Koome, that their singular desire is that the court determines and settles the constitutional questions in their appeal.
"Not just for today but also and perhaps more importantly for posterity," he said.
He said Court of Appeal judges answered important questions the wrong way, ambiguously and gave contradictory justifications in some cases.
“We have no doubt that our Constitution has a basic structure, but in our Constitution, it tells us that it is amendable, and it goes further to tell us how it should be amended. It does not impose any limit to its amendability,” he said.
He faulted the judges for agreeing with the High Court ruling that basic structure is amendable only through the primary constituent power that must include four sequential processes.
Ogeto further submitted that Court of Appeal judges erroneously elevated the basic structure doctrine to a universal template for certain Constitutional amendments or changes.
He argued that even if the basic structure doctrine was applicable in Kenya, the absence of clarity on what the basic structure is would create legal and constitutional difficulty.
On the issue of popular initiative, Ogeto said the judges did not consider the consequence of their finding to a president, who having been elected on constitutional reforms, finds himself facing a partisan and hostile parliament.
He further said this scenario is not hypothetical as had been alluded to by Justice Patrick Kiage in his judgement. He said such situations are a real possibility under our constitutional framework and require contemplation and an answer.
On the issue of presidential immunity, he said the court erred in finding that civil proceedings can be instituted against the president during his tenure in office.
Edited by Mercy Asamba