President Uhuru Kenyatta and the Orange Democratic Movement (ODM) leader Raila Odinga’s bid to resuscitate the Building Bridges Initiative (BBI) kicks off Tuesday, January 18, 2022, when hearing of the matter starts at the Supreme Court.
Among the contentious issues Uhuru and Raila expect to be ruled in their favor include whether the President can initiate changes to the Constitution by popular initiative.
Also up for determination is whether the BBI proposal to create 70 new constituencies was unconstitutional, as ruled by the lower courts. Attorney General Paul Kihara Kariuki argues that the lower courts ignored the rights of citizens to determine electoral boundaries through a referendum.
The AG further faults the lower courts on whether civil proceedings can be instituted against a sitting President, arguing that he enjoys immunity while in office.
From left: Deputy President William Ruto, President Uhuru Kenyatta and Orange Democratic Movement leader Raila Odinga at the Bomas of Kenya on Wednesday, November 27, 2019, during the launch of the Building Bridges Initiative
Raila, who filed his submissions alongside the BBI Secretariat through Paul Mwangi, argues that the Court of Appeal erred in finding that there wasn’t adequate public participation.
Lawyer Paul Mwangi also argues that no Constitution is cast in stone, on the question of whether the basic structure doctrine applies to Kenya or not. The lower courts had ruled that the basic structure of the Constitution cannot be changed.
Mwangi also seeks to prove that the President was not the initiator and promoter of the BBI process and that there is no law that limits him even if he was the initiator.
The court is also expected to rule on the quorum required for the Independent Electoral and Boundaries Commission (IEBC) to conduct its business and whether each proposed constitutional change should be a separate referendum question.
AG Kihara Kariuki, the first appellant, is set to kick off submissions tomorrow. Other appellants include the BBI Secretariat, the Independent Electoral and Boundaries Commission (IEBC), The Senate, The National Assembly, and several County Assemblies.
BBI, christened Reggae by its proponents, kicked off with a symbolic handshake between Uhuru and Raila at the President’s Harambee House office in March 2018.
The process, however, hit roadblocks along the way when the High Court sitting in Nairobi ruled that it was unconstitutional. This decision would further be upheld by the Court of Appeal in August 2021.
A seven-Judge bench that includes Chief Justice Martha Koome, her deputy Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko will hear the matter.
DP William Ruto speaking at Bomas of Kenya on October 26, 2020.