The Building Bridges Initiative (BBI) Secretariat has announced plans to appeal a verdict by the Court of Appeal that its push to amend the constitution was unconstitutional.
In a judgment delivered last Friday, the Appellate Court upheld a decision by the High Court that the BBI process was flawed and unlawful.
But in a press statement on Thursday, the BBI Secretariat led by co-chairs Junet Mohamed and Dennis Waweru stated that as a secretariat they will be supporting the Attorney General’s petition on BBI at the Supreme Court.
“We believe that the Supreme Court has a wider and more encompassing mandate when dealing with matters of great national interest than the High Court and the Court of Appeal,” the secretariat said.
“We want to keep pushing because we are determined to ensure that some of the very noble proposals in the BBI are not lost and if they have to be lost it must be known that we made out best efforts to secure them.”
The BBI team argues that there is a possibility of a national crisis if some of the BBI provisions are not adopted into law.
This, according to the secretariat, includes the BBI proposal to solve the gender question in parliament, corruption menace and the inequality issue whose origin can be traced to social and economic policies of the colonial era and immediate post-independence period.
“We want the Supreme Court to take a stand on these matters,” they added.
Kahawa Tungu understands that the AG, Kihara Kariuki, has 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 Uhuru President Kenyatta was the promoter of the BBI initiative.
A majority of the seven-judge bench 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.
BBI is a product of the March 2018 handshake between President Kenyatta and his political nemesis-turned-ally, Raila Odinga.
Odinga, who served as Kenya’s Prime Minister between 2008 and 2013, indicated on Friday that he will not challenge the ruling at the Apex court.
“It is likely that this is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today. That is welcome, as the issues involved need to be deliberated upon to the fullest extent,” Odinga said in a statement.
“For us, as we have stated before, we shall engage only to the extent that circumstances will require. But we feel that we have to move on.”