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Editor's Picks - Local News - Politics - May 16, 2021

KENYA; AG Paul Kihara Appeals High Court’s BBI Judgement

Kenya’s Attorney General Paul Kihara has filed an appeal against the High Court’s ruling on petitions filed against the Building Bridges Initiative issued on May 13.

Kihara says he is dissatisfied with the decision of the 5-judge bench delivered at the High Court.

“I the 1st respondent, being dissatisfied with the decision of the five judge-bench consisting of Justice J.M Ngugi, Justice J.V Odunga, Justice Ngaah Jairus, Justice E.C Mwita and Lady Justice Mumbua T Matheka, intends to appeal to the Court of Appeal against the whole of the said decision,” He said.

The AG also wants the Appellate Court to issue stay orders against the execution of the judgement pending the hearing and determination of the application as well as the hearing and determination of the appeal.

The court faulted promoters for attempting to usurp powers apportioned to the Independent Electoral and Boundaries Commission on delimitation of constituency boundaries.

In its ruling, the court declared the basic structure of the constitution could only be amended by invoking a four-phased process entailing, “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”

Contrary to the position taken by the court, the BBI constitutional review process was found to have fallen short of the Primary Constituent Power, the court holding that the President overreached his mandate in promoting constitutional changes under a popular initiative.

“A constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through a Popular Initiative under Article 257 of the Constitution,” the bench ruled.

A BBI steering committee gazetted in January 2020 was also declared an unconstitutional entity, the court holding that it lacked the legal capacity to initiate constitutional changes under Article 257 which sets out conditions precedent for an amendment through a popular initiative.

The court also issued a declaration invalidating “the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020” saying it was “done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power.”

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