NAIROBI, Kenya, Aug 20 – Seven judges in the Building Bridges Initiative appeal bench will each read their individual judgment before the court sums up the majority verdict.
President of the Court of Appeal Daniel Musinga, in the opening remarks on Friday, said each judge wrote their judgment, departing from the practice of two collective judgments; a majority decision and minority opinion.
“The delivery of the judgment shall fairly take a long time because each judge has written their own judgment and shall read personally, we shall read what we consider most important part buts shall provide soft copies of the same after the end of the session,” he said.
Justice Musinga commenced delivering his verdict before handing over to his colleague Francis Tuiyott and thereafter Justices Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Hannah Okwengu and Gatembu Kairu.
The judges were scheduled to take a break at 11 am and continue thereafter until 1 pm. Justice Musinga said the bench will resume after 1pm if all the judges will not have concluded.
In his introductory part of the judgment, Justice Musinga said: “That the constitution of Kenya is a transformative one is not a dispute, its implementation has, however not been without challenges because of competing interests between Kenyans; holders and aspirants of political power and the majority of Kenyans concerned with affairs of the country.”
The bench is set to rule on about 17 contentious issues including whether the task force established to initiate the process was established in line with the law.
They will also determine the applicability of the basic structure doctrine in Kenya, the president’s limits on the constitutional review process, and whether promoters of constitutional amendments can create and allocate new constituencies.
The Constitutional Court determined the basic structure doctrine is applicable thus limits amendment processes stipulated in Articles 255, 256 and 257 unless the primary constituent power is invoked through “four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
Judges Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said in a unanimous ruling delivered on May 13 found that President Uhuru Kenyatta violated the Constitution, particularly Chapter 6 when he initiated the process following his handshake with former Prime minister Raila Odinga with whom he promoted the process.
The Court of Appeal will pronounce itself on the quorum threshold of the Independent Electoral and Boundaries Commission (IEBC), and the implications of lack of quorum set out under Section 8 of the IEBC Act.
Under the Act, the agency which sits a maximum of seven commissioners has a quorum threshold of four members without whom the Constitutional Court said it could not conduct a referendum exercise including verification of promoters’ signatures.
