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Sunday, December 5, 2021

AG files appeal on BBI Ruling

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Attorney-General Kihara Kariuki has filed an appeal at the Court of Appeal challenging the decision by the High Court to annul the Building Bridges Initiative-sponsored Constitutional Amendment Bill 2020.

In the appeal the AG wants an order staying execution of the May 13, 2021 ruling until the hearing and determination of his application against the decision by the five-judge bench is made.

By declaring the BBI Process unconstitutional, the AG says the five high court judges halted a political process with the support of millions of Kenyans and which had been earmarked to end perennial election-related violence and marginalization.

“The ongoing constitutional amendment process by popular initiative has received the requisite constitutional approval by more than 3 million registered voters, majority of County Assemblies and both Houses of Parliament,” The AG indicated in an appealed filed on his behalf by Solicitor General Kennedy Ogeto.

The government’s chief legal advisor insists that the BBI process is geared towards national reconciliation which constitutes a legitimate national political process.

According to the AG, the findings made by Justices Joel Ngugi, Chacha Mwita, Jairus Ngaah, George Odunga, and Teresiah Matheka, constitute an unlawful restriction of the right of Kenyans to decide how they want to be governed.

“The effect of the Superior Court’s (High Court) findings is to unconstitutionally limit the inalienable right of Kenyans to determine their destiny,” said the AG in the appeal.

Kihara claims that the ruling by the High court now bars the Independence Electoral Commission (IEBC) from executing its constitutional mandates.

He further faulted the High Court for declaring that President Uhuru Kenyatta had contravened Chapter Six of the Constitution of Kenya by initiating and promoting a constitutional change process contrary to provisions of the constitution on amendment of the constitution.

“Unless stayed, this drastic finding will expose the President to the immediate commencement of unwarranted adverse legal proceedings….Such proceedings would serve to undermine the authority and lawful mandate of the president to the detriment of the greater general public,” He said in his protest.

The AG holds the view that the orders issued by the High court judges were beyond the matters that were before the court.

He terms them “extensive and revolutionary” that they go to the very foundation of the constitution.

As such, if allowed to stand, the AG warns that the orders will have far-reaching consequences in the conduct of national affairs essentially criminalize the president’s action aimed at fostering nationhood.

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