A fresh legal showdown is looming at the Supreme court, barely a day after the Court of Appeal affirmed a 5-judge High Court bench decision switching off the BBI reggae
Attorney General Paul Kihara Kariuki, who has lately come under heavy criticism after a litany of government losses in the corridors of justice, is headed to the Apex court, to challenge the Appellate judges verdict.
In a draft document seen by Citizen TV, the government’s principal legal advisor lists three grounds for his appeal; applicability of the basic structure doctrine, remit of a constitutional amendment by popular initiative and presidential immunity.
According to the AG, the Court of Appeal judges, in the majority decision, overstretched their mandate, insisting that historically, the doctrine had only been applied in situations where the amendment power is reserved for parliament and where people have no direct involvement through a referendum.
The AG says the 2010 constitution has elaborate provisions to protect its basic structure.
According to the Attorney General, the appellate judges missed the point, when they listed President Uhuru Kenyatta as the promoter of BBIi-driven popular initiative drive to amend the constitution.
The president, according to Kariuki, was not expressly barred from initiating amendments to the constitution through popular initiative, and that like any other citizen, he enjoys civil and political rights, including rights to initiate constitutional amendments.
On the question of presidential immunity, the AG holds that the president was insulated from prosecution during his tenure, and that the judges contradicted the constitutional provisions on presidential immunity.
While the Attorney General exuded confidence that the Apex court will overturn the Court of Appeal verdict, legal players who challenged the BBI process in the High Court and contested the appeal hold a different opinion…
With under 12 months to the General Election, it remains unclear if a referendum can be conducted before the country heads to the general election, should the supreme court set aside the court of appeal verdict.