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Kenya:BBI battle proceeds to Supreme Court

September 3, 2021

By Samuel Ouma

Kenya’s electoral agency, IEBC, and Attorney General Paul Kihara have moved to the Supreme Court to challenge the Appellant Court’s verdict that declared the Constitutional Amendment Bill, the Building Bridges Initiative, unconstitutional.

In its separate suit, the former appealed the court’s findings on its constitutional composition, quorum, and mandate.  A seven-judge bench ruled that the commission lacked a quorum to verify signatures collected by the Bill’s proponents.

“IEBC intends to appeal to the Supreme Court against such parts of the decision in relation to the findings by the Honourable Court touching on or relating to the constitutional composition, quorum and mandate of the IEBC,” reads the court documents.

On his part, AG Kihara expressed his dissatisfaction with eight rulings made by the court on August 20, 2021, one of them being that the basic structure doctrine applies in Kenya.

He is also challenging the appellate court’s finding that the Basic Structure of the Constitution of Kenya can only be altered through the primary constituent power, which must include four sequential processes, including civic education, public participation, constituent assembly debate, and finally, referendum.

 Kihara also challenged the ruling that the President has no authority to initiate changes to the constitution. Any amendment to the constitution can only be initiated by the Parliament or through the popular initiative.

He is also appealing against the declaration that the constitutional amendment process was unconstitutional and a usurpation of the People’s exercise of sovereign power. 

AG further challenged the ruling that the BBI breached Article 10 of the Constitution.

He also challenged the ruling that the President can be sued on his personal capacity for contravening the constitution.

Mr. Kihara is challenging a finding that the second schedule of the Constitution of Kenya Amendment Bill, 2020, was unconstitutional is so far it purported to predetermine the allocation of the proposed 70 new constituencies.

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