BBI referendum plans thrown off by August ruling
The Court of Appeal has thrown the planned referendum into confusion after it set a date that does not favour the timelines set by the proponents who had planned to have it by August.
President Uhuru Kenyatta and Mr Raila Odinga had initially indicated that the Building Bridges Initiative (BBI) referendum would be held in June, but they later pushed it to August.
The Court of Appeal threw a spanner into the works by setting August 20 as the date when it will deliver its judgment on the initiative.
Attempts by former Attorney-General Githu Muigai for the Independent Electoral and Boundaries Commission (IEBC) to have an earlier date were rejected by the court. The court said going by the magnitude of the case, voluminous documents filed by the parties and the importance of the case, the judges cannot deliver their decision any earlier.
Prof Muigai had told the court that time was ticking and the commission needed time to prepare for it, given that General Election is growing nearer.
Referendum
The August 20 date for the delivery of the judgment would mean a logistical nightmare if the court allows the BBI to proceed to a referendum.
Once President Kenyatta assents to the BBI Bill, IEBC would have up to 90 days to conduct a referendum, which means the earliest a referendum can take place from the date of the judgement would be November 18.
Then, IEBC would have up to six months to delineate the 70 new constituencies, meaning that the exercise could run up to April 2022, just four months to the elections. This means that candidates hoping to contest in these new constituencies would have to wait until four months to the elections to begin campaigning.
For IEBC, the delineation of the boundaries of the 70 constituencies would not be the end as it will have to mobilise staff and resources for the new constituencies and set up the polling stations.
Lawyers seeking to unlock the amendment of the constitution through the BBI urged the judges not to curtail the rights of the over one million Kenyans who endorsed the process. Instead President Kenyatta, Mr Odinga, the BBI Secretariat, IEBC and the AG urged the seven judges to overturn the High Court decision.
Rigorous process
Appearing for the BBI Secretariat, Siaya Senator James Orengo maintained that the promoters of the process were Suna East MP Junet Mohamed and Mr Dennis Waweru, even though there was nothing stopping President Kenyatta from supporting the initiative.
“If the President can be this thing we call ordinary, including a voter, nothing stops his from supporting the initiative. He still has his rights,” he said.
Mr Orengo said the BBI was subjected to a rigorous process where county assemblies debated it. He added that many Kenyans and groups such as the in Law Society of Kenya (LSK) and the Judiciary took part in the process by giving their views to the Justice and Legal Affairs Committee in Parliament. He said it was therefore wrong to state that there was no public participation.
President Kenyatta, through lawyers Kimani Kiragu and Waweru Gatonye, supported the argument that nothing stopped him from taking part in the process. Mr Kimani said the constitution is for all Kenyans irrespective of their status. He added that the suggestion that once he was elected the President gave up his rights as an individual is a violation of his rights. Mr Gatonye maintained that the President was condemned unheard.
On his part, the AG, through lawyer Paul Nyamodi, said the President acted within the law when he published the gazette notice establishing the task force to kick-start the process.
Mr Nyamodi said the basic structure doctrine is not applicable to the Constitution of Kenya and that whereas the constitution might have entrenched structures, they are amendable.
Political elite
“There is no provision in the constitution that is unamendable,” he said.
Prof Githu Muigai and Justus Munyithya for IEBC said there some structures in the constitution that are “super protected”, such as the Kenyan boundaries and the national anthem, but what those opposed to the BBI have termed as eternity clauses do not exist.
In her submissions earlier, Ms Martha Karua faulted the political elite saying they use amendments of the constitution to extend their stay in power and to concentrate power in their hands.
“It is clear to me that modern dictators, especially in Africa, are using the constitutional amendment as a special vehicle to claw away civil liberties and democratic gains,” she said. Ms Karua who was acting for Osogo Ambani, Linda Musumba and Jack Mwimali added that the constitution recognised the danger of such behaviour and put mechanisms to check it.
“Kenyans knowing that the political class will be a hindrance to the faithful implementation of the constitution gave to the court powers to interpret and determine whether anything done under the constitution is constitutional,” she argued.
“It’s the duty of this court to set limits as demanded by the constitution of the authority by the political elites, all the arms of government derive their power from the people and this court has the last word on the interpretation of the constitution,” she said.
Lawyer Topoa Lesinko for Morara Omoke asked the court to consider whether the Auditor-General can audit monies spent by the BBI Secretariat and IEBC and seek for a refund. BY DAILY NATION
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