Opponents of BBI urged the Appellate Court to throw out the case by petitioners claiming the Constitution is anchored in eternity closes, that can not be repealed through the BBI process.
The respondents told the court about the petitioners have failed to demonstrate that the president was just a supporter of the initiative and not a promoter of the process.
Lawyer Elias Mutuma representing Third Way Alliance challenged the assertions by the BBI secretariat and Raila Odinga that Dennis Waweru and Suna East MP Junet Mohammed rather were the initiators of the BBI.
Third Way Alliance lawyers in the BBI petition at the Court of Appeal questioned the President’s involvement in the process, saying he should have recused himself from his office if he needed to initiate a popular initiative
“If the President then wants to initiate such a process as a citizen, he must of all do exactly that. Announce to us that this is not the President doing this, It is me as a citizen, said Lawyer Elias Mutuma.
According to respondents in the petition who support the High Court ruling, the Constitution is anchored on eternity clause that can not be repealed through the same constitution but outside its conference.
“Involve the people directly in a manner that they are amending or rather they are creating a new document altogether,” said lawyer Elias Mutuma.
His sentiments supported by Professor Kindiki Kithure, who says the rushed BBI process liking into the Simon Makundi story, had the president’s footprints all over.
“The launch of the collection of signatures exercise and all other events associated with this ill-fitted exercise or process were presided over by the President of the Republic of Kenya using state machinery and none of these meetings or events took place in anybody’s private home,” said Professor Kindiki Kithure.
Kindiki would further table the findings of the JLAIC report that shows evidence that the proposals were unconstitutional.
“It was clear from the report and from the Hansard proceedings that the finding of the report was that many provisions in the proposed amendment bill were unconstitutional,” said Professor Kindiki Kithure.
David Ndii and four others through their lawyers, Nelson Havi, and Esther Angawa demonstrated how the bill was aimed at tempering with independence of the judiciary by introduction of the Ombudsman.
“It has sought to interfere with the independence of the judiciary by installing an executive prefect in the name of Ombudsman,” said lawyer Nelson Havi.
Verification of the signatures, public participation, as well as debate on multiple questions from the basis of the respondents’ arguments.
We cannot say that provision requiring a quorum of five does not exist today because of a declaration of unconstitutionality made by Justice Chacha Mwita on 6th of April 2018, said lawyer Esther Angawa.
“But whenever we have a referendum in our nation, they should be a nationwide voter registration exercise. Secondly, that we must always have a multi-choice referendum,” said lawyer Morara Omoke.
“It does not comply with article 10 of the constitution. There was no public participation,” said lawyer Carolyne Jerono.
With a day remaining to the conclusion of the hearing of the BBI appeals, the opposing respondents continue to give their submissions and thereafter the judges will be required to retire to go through the submissions and subsequently give a judgment.
