Kenya’s Attorney General Paul Kihara Kariuki is headed to the Supreme Court to challenge a decision by the Court of Appeal to uphold a High Court verdict that BBI is unconstitutional.
The Appellate Court on Friday declared the constitution amendment bill, popularly referred to as the Building Bridges Initiative, unlawful dealing a death blow to the BBI proponents’ push to amend the constitution before the 2022 polls.
President Uhuru Kenyatta and his political nemesis-turned-ally, Raila Odinga, unveiled the initiative after striking a political truce on March 9, 2018, following a disputed 2017 presidential poll which caused unrest in some parts of the country.
Criticizing the BBI judgment, Kariuki, who is the government’s principal legal advisor, has reportedly come up with three grounds to challenge the Appellate Court’s verdict.
They are applicability of the basic structure doctrine, remit of constitutional amendment by popular initiative and presidential immunity.
On the matter of the basic structure, the AG argues that the judges, in the majority decision, overstretched their mandate, insisting that historically, the doctrine had only been applied in situations where the amendment power is reserved for parliament and where people have no direct involvement through a referendum.
According to him, the 2010 constitution has elaborate provisions to protect its basic structure.
He differs with the majority ruling that President Kenyatta was the promoter of the BBI initiative.
A majority of the judges ruled that the BBI process was not a popular initiative as it was initiated by President Uhuru Kenyatta in his capacity as the Head of State.
But Kariuki says that President Kenyatta was not expressly barred from initiating amendments to the constitution through popular initiative.
He insists that like any other citizen, the Head of State enjoys civil and political rights, including rights to initiate constitutional amendments.
On the decision of the court that the President can be sued in his personal capacity under his tenure, Kariuki insists that the judges contradicted the constitutional provisions on presidential immunity.
Lately, the AG has come under heavy criticism over a number of cases the state has lost in court with a section of Kenyans opining that he was misleading the President on certain governance matters.
In its verdict on Friday, the Court of Appeal issued a permanent injunction barring the Independent Electoral and Boundaries Commission (IEBC) from conducting a referendum or any other process touching on the amendment of the constitution through a popular initiative.
“A permanent injunction be and is hereby issued restraining IEBC from undertaking any processes required under Article 257(4) and (5) in respect of constitutional amendment bill 2020,” said Justice Daniel Musinga.
The seven-judge bench, however, expunged part of the High Court orders including one that said that President Kenyatta had contravened Chapter Six of the Constitution.