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AG, IEBC move to court over BBI ruling

The Building Bridges Initiative (BBI) case has now moved to the Supreme Court following an appeal filed by Attorney General (AG), Kihara Kariuki, challenging the decision by the Appellate court to affirm nullification of BBI.

Through Solicitor General, Kennedy Ogeto, the AG says he is dissatisfied with the decision of the Court of Appeal and intends to challenge it.

Ogeto said they are challenging the finding by the majority of the Seven-Judge Bench, which held that the Basic Structure Doctrine is applicable in Kenya.

“Take notice that the Attorney General is dissatisfied with the decision of the Court of Appeal given in Nairobi on August 20 and that it intends to appeal to the Supreme Court, against such part of the said decision, that upheld the findings of the High Court,” reads court documents.

The State Law Office, through the Attorney General, is also challenging the finding that the basic structure of the Constitution, can only be altered through the Primary Constituent Power, which must include four sequential processes namely; civic education, public participation and collation of views, constituent assembly debate and ultimately a referendum.

According to the Court documents seen by the press, the AG further said he is dissatisfied with the finding that the President does not have authority under the law, to initiate changes to the Constitution and that amendment can only be initiated by Parliament, through a parliamentary initiative under Article 256 through a popular initiative.

The State Law Office also argued that the ruling by the Court that the constitutional amendment was unconstitutional and a usurpation of the people’s exercise of sovereign power, was illegal.

The AG has also appealed the finding by the majority of the Bench, which ruled that civil proceedings can be instituted against the President, during the tenure of office in respect of anything done or not done, contrary to the Constitution.

In a separate filing, the Independent Electoral and Boundaries Commission (IEBC), has filed a notice of appeal, saying that it is dissatisfied with the Court of Appeal judgement that nullified the Constitution of Kenya (Amendment) Bill 2020, popularly known as the BBI.

The Commission in the court documents, said that it will appeal parts of the Appellate Court’s finding that it intends to appeal include, the constitutional composition, quorum and mandate of the IEBC.

“Take notice of the IEBC dissatisfaction with the decision of the Court of Appeal given on the 20th day of August 2021, by Honourable Justices D. Musinga; R. Nambuye; H. Okwengu, P. Kiage, G. Kairu, F. Sichale and F. Tuiyot and intends to appeal to the Supreme Court against such parts of the decision in relation to the findings by the Honourable Court touching on or relating to the constitutional composition, quorum and mandate of the IEBC,” reads the court documents.

The Court of Appeal on the 20th August upheld the High Court ruling, that BBI is null and void and its processes were unconstitutional.

In a majority decision, six of the Seven-Judge Bench, headed by the Court’s President, Daniel Musinga, tore into the BBI process, declaring several stages and actions unconstitutional and unlawful.

By Alice Gworo 

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