NAIROBI, Kenya, Jan 18 – Three respondents listed as amici in the Building Bridges Initiative (BBI) appeal at the Supreme Court have protested a decision by the court to reclassify them terming it as erroneous.
Dr Duncan Oburu Ojwang, Prof John Osogo Ambani and Linda Andisi Musumba who appeared as respondents before the Court of Appeal, where the BBI constitutional review process was invalidated, asked the court to re-evaluate its decision which implied the trio could not make oral submissions at the hearing which commenced on Tuesday.
“We too require our time to highlight certain issues. We urge the court not to reduce us to spectators by changing our status,” former Constitutional Affairs Minister Martha Karua told Supreme Court judges.
“We’re respondents and this court has treated us as respondents by entertaining our application for consolidation. An amicus curiae cannot make an application for consolidation,” Karua who appeared alongside lawyer Muthoni Nyigutu told the 7-member panel led by Chief Justice Martha Koome.
The Narc Kenya Party Leader was referring to directives issued by the bench on January 14 which allocated main parties 45 minutes to argue their case while other respondents were granted 15 minutes.
Responding to a question posed by Justice Isaac Lenaola, Karua explained that the trio joined the petition at the High Court, from where it originated, as friends of the court but were later listed as respondents by pro-BBI parties in their appeal at the Court of Appeal which the constitutional review process was similarly rendered null and void.
“Parties before the court ought to be treated equally and all respondents should be treated equally. Considering this is the court of last resort, I respectfully urge that the court ought not to lock us out,” she pleaded.
The Court of Appeal rendered the BBI process co-initiated by President Uhuru Kenyatta and former Prime Minister Raila Odinga after their March 2018 truce a crippling blow on August 20, 2021 after sustaining a unanimous Constitutional Court judgment declaring it null and void.
Six of the seven judges who composed the appellate bench upheld the Constitutional Court finding on the application of the basic structure doctrine.
Further the judges agreed promoters of the constitution abused the popular initiative constitutional review route.
Justices Daniel Musinga (President), Patrick Kiage, Francis Tuiyott, Gatembu Kairu, Hannah Okwengu and Roselyn Nambuye supported the basic structure doctrine while Fatuma Sichale dissented.
All the seven appellate judges unanimously agreed with a Constitutional Court decision on May 14, 2021, when Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua ruled that President Kenyatta, being Head of State, could not initiative a constitutional review process through the popular imitative route.
“His Excellency the President cannot be a wanjiku (ordinary citizen). I agree with the High Court that the President cannot initiate changes through popular Initiative,” Lady Justice Sichale stated.
“The president’s involvement in the BBI was not in his private capacity. It was also necessary for the public to be supplied with adequate copies of the Bill for their consumption before collection of their signatures,” Justice Kairu added.
The Court of Appeal also unanimously upheld the verdict by the Justice Ngugi-led Constitutional Court bench that the BBI steering committee had no legal capacity to propose amendments to the constitution through a popular initiative provided for under Article 257 of the Constitution.
In determining the appeal before the Supreme Court, Justices Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko will either adopt or reject twenty-two declarations made by the Court of Appeal on August 20, 2021.
