May 18, 2022

Government, IEBC move to court over BBI ruling

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The government and electoral body have filed an appeal at the Supreme Court challenging the decision by the Appellate court to affirm nullification of BBI.

AG Kihara Kariuki, acting on behalf of the government, said that he is dissatisfied with the decision of the Court of Appeal and intends to challenge it.

“Take notice that the Attorney General being dissatisfied with the decision of the Court of Appeal given at Nairobi on August, 20 intends to appeal to the Supreme Court against such part of the said decision that upheld the findings of the High Court,” Solicitor General Kennedy Ogeto says in the court documents.

The State Law Office challenged the finding by the Appellate Court that the basic structure of the Constitution can only be altered through the Primary Constituent Power, which must include four sequential processes namely civic education, public participation and collation of views, constituent assembly debate and ultimately a referendum.

The AG appealed that the President does not have authority under the law, to initiate changes to the Constitution and that amendment can only be initiated by Parliament.

Kihara appealed against the Court of Appeal ruling that civil proceedings can be instituted against the President.

In a separate filing, the Independent Electoral and Boundaries Commission (IEBC) said that it was dissatisfied with the Court of Appeal judgement that nullified BBI.

IEBC will also appeal parts of the Appellate Court’s finding that include the constitutional composition, quorum and mandate of the IEBC.

“Take notice of the IEBC dissatisfaction with the decision of the Court of Appeal given on the 20th day of August 2021, by Honourable Justices D. Musinga; R. Nambuye; H. Okwengu, P. Kiage, G. Kairu, F. Sichale and F. Tuiyot and intends to appeal to the Supreme Court against such parts of the decision about the findings by the Honourable Court touching on or relating to the constitutional composition, quorum and mandate of the IEBC,” reads the court documents.

The Court of Appeal on August 20, upheld the High Court ruling, that BBI is null and void and its processes were unconstitutional.

In a majority decision, six of the Seven-Judge Bench, headed by the Court’s President, Daniel Musinga, tore into the BBI process, declaring several stages and actions unconstitutional and unlawful.

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