By: Kamande Muchiri @MountKenyaTimes
Former Attorney General Githu Muigai on day two of the submissions at the Court of Appeal yesterday accused the High Court Judges who shot down the Building Bridges Initiative (BBI) process of being subjective in their ruling and by extension ignoring the evidence that was presented before them.
“We can create judicial anarchy if courts of law make decisions in realm on matters of public law and courts of equal jurisdiction where this is brought to them and ignore that and say that I have a different opinion and in the meantime this decision realm has begun to change the manner in which the constitutional institutions operate,” he said.
Senior Counsel Muigai who is leading the Independent Electoral and Boundaries Commission (IEBC) legal team accused the five Judges of advancing Judicial anarchy in the country when they delivered their May 14 ruling.
He told the Appeals bench that the judgement by the High Court cannot be allowed to stand because it violates so many fundamental tenets of good constitutional interpretation and management of constitutional conflict that if it were allowed to stand it would be the recipe for chaos.
He stressed that the five Judges of the High Court failed to appreciate the fact that IEBC is an independent body which draws its mandate from the Constitution.
Furthermore, he was categorical that the Judges overstepped on their mandate and issued advisory opinions “on hypothetical issues coached in the language that it did” which he said only ought to be rendered by the Supreme Court.
“As a result, it trampled upon the independence of IEBC. Independence is not for the judiciary alone, independence is for every constitutional institution,” he said
Muigai was responding to the High Court ruling that faulted the electoral body for lacking quorum to conduct any electoral business when it verified BBI signatures.
The electoral body filed 12 grounds of appeal and categorized them on four thematic areas namely on the issues which were raised on quorum, voter registration, verification of signatures and public participation.
The Judges ruled that the commission ought to have five commissioners and not three as currently constituted, even though they agreed that it can conduct by-elections.
Muigai regretted that it was unfortunate for the Judges to ignore previous authorities that deemed the electoral body fit to conduct business.
In 2018, when determining a case which sought to block by-elections in Baringo South, North Kadem (ward) and in Bobasi Chache (ward), Justice Wilfrida Okwany had ruled that three commissioners could still legally run the electoral body.
The petitioner then had argued that the Commission had no quorum hence cannot carry out any legal function or make key decisions, but Justice Okwany dismissed the case and found that the minimum commissioners cannot be a constant number.
Waweru and Junet were BBI promoters, not Uhuru
Senior Counsel Otiende Amollo, on his submissions at the Court of Appeal, asserted that the High Court erred in its judgement on the BBI promoters.
Amollo, appearing for the BBI Secretariat, told the court that BBI Secretariat Co-Chairperson Dennis Waweru and National Assembly Minority Whip Junet Mohammed were the one who initiated the Constitutional review push.
He faulted High Court’s judgement finding President Uhuru Kenyatta as a key promoter.
“Against all evidence, which was not controverted, the promoters were Waweru and Junet but the (High) Court insists on finding that His Excellency President Uhuru Kenyatta was the promoter of this Initiative,” he told the Appellate court judges.
The Raireda MP went on to explain that President Kenyatta cannot be prevented from exercising his political right to support an idea in which he feels aligns with his thinking.
He narrated the process Mohammed and Waweru took in collecting the 1 million signatures in support of the proposed amendments, which were then reduced into a Bill and it’s at that point that the popular initiative started.
According to Amollo, the Independent Electoral and Boundaries Commission sent a letter to the counties and confirmed that the duo are the promoters of the BBI.
He accused the High Court judges of practicing judicial activism and subverting the will of millions of Kenyans who endorsed the process, with the help of a section of politicians opposed to the BBI process and members of the civil society.
He pointed out that the five judge-bench coined the word ‘initiator’ to explain that the subject referred to as the above was behind the initiative.
“Having realised that the President was not the prompter, the Court then coined a term initiator, which does not exist in Article 57. There is only a promoter and the supporter, in respect this word (initiator) is then used in the judgement to camouflage the difficulty to identify the promoters,” he explained.
Otiende cautioned that if the ruling by the High Court was allowed to stand, it would make it impossible for any Kenyan to initiate an amendment to the Constitution as it will force the promoter to go through all the steps involved in law from collecting signatures all the way to Parliament.
On the question of signature verification, the lawyer argued that the IEBC was supposed to verify one million registered voters and not one million signatures.
“You cannot place undue substance on the question of signatures when in the first place, the law does not require every Kenyan to have a signature, neither a repository of signatures,” he said.
The hearing enters day three today (Thursday) and will end tomorrow, thereafter the appellate Court will retreat to write a judgement.