BBI Appeal: Supreme Court hearing officially starts

BBI Appeal: Supreme Court hearing officially starts

BY JOAN WANJIKU,NAIROBI,18TH JAN,2022-The hearing of the appeal case on the Building Bridges Initiative (BBI) kicked off Tuesday at the Supreme Court.

The three consolidated petitions of the Attorney General, the Independent Electoral and Boundaries Commission and Morara Omoke are contesting the ruling by the High Court which was upheld at the court of appeal.

In a three-day sitting, the apex court will hear the appeals filed by Attorney General Kihara Kariuki, the Independent Electoral and Boundaries Commission (IEBC) and city lawyer Morara Omoke.

On Monday, the Attorney General protested the time he has been allocated to argue his appeal.

The AG said he is the main appellant in the appeal yet the respondents have been allocated a combined time six hours.

The AG is of the view that the direction issued by the Court on the 9th of November on time allocation seems to favor the respondents who will have a combined six hours yet as the main appellant he has only been given 45 minutes.

The AG says he will be addressing weighty matters that touches on greater public importance yet the appellants combined will only have two hours  something he says is skewed  in favor of the respondents.

The AG further says in view of the complexity of the matters to be addressed in the appeal and taking into consideration the number of  counsels he will be relying on  the appellants should be allocated six hours combined and as the main appellant he be given one hour 45 minutes.

The court had given appellants and respondents ten days to file and serve written submissions including a list of authorities that will be cited.

The submissions were to be confined to seven key issues framed by the court that will be used in determining the matter.

They include;

i) Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;

ii) Whether the President can initiate changes/amendments to the Constitution; and whether a_ constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the constitution;

iii, Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;

iv, whether civil proceedings can be instituted against the president or a person performing the functions of the office of the president during his/her tenure of office with regard to anything done or done contrary to the Constitution;

v, The place of public participation under Article 10 vis-avis the role of IEBC under Article 257 (4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;

vi0 Interpretation of Articles 88 & 250 of the Constitution with respect to composition and quorum of IEBC; and

vii) Whether interpretation of Article 258 (10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.

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