Senior Counsel Otiende Amollo broke down the ruling made by the 5-judge High Court bench that nullified the Building Bridges Initiative (BBI).
The Rarieda MP who appeared at the Court of Appeal on behalf of the pro-BBI team argued that Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka created their own words and their ruling left more questions than answers.
While submitting his reasoning on Wednesday, June 30, the lawyer stated that the judges coined the word 'initiator' to explain that the subject referred to as the above was behind the initiative.
Yet the only word that can be used to refer to the subject pushing for the initiative should be the promoter.
"Judges came up with the word 'initiator' - they did not explain why. They introduced the word in their ruling. It is clear one would have expected the judges to demonstrate this finding. Promoters were Suna East MP Junet Mohammed and BBI secretariat co-chair Dennis Waweru,
"The court insisted that it was President Uhuru Kenyatta. The one thing the court does not do in their 300-page judgement is it fails to ask who are the promoters. BBI is an initiative promoted by Waweru and Junet authorized by IEBC to collect signatures," Otiende argued defending President Uhuru against the declaration that he initiated the bill.
He added that the basic structure issue was also not clearly addressed by the judges, causing confusion in the interpretation of their judgement.
Otiende stated that at the end of the ruling, the court left the basic structure doctrine issue hanging and was not clear on which chapters of the Constitution formed the basic structure.
The court had ruled that the essential features of the Constitution forming the basic structure can only be altered or modified by the people through their sovereign power and not merely through the referendum. Senior Counsel James Orengo on Tuesday, June 29, argued that all chapters formed the basic structure and can be amended as opposed to the judges' ruling.
"The judges identified nine chapters different from the 5 they stated will be forming the basic structure - those 9 excluded Chapters 1, 2 and 3. Orengo pointed out that the structure starts from 1, 2 upwards.
"They also ruled that the basic structure also comprised the first three chapters, the Preamble all other chapters and the six schedules - even if we were to accept if basic structure doctrine applies, then when and where do you find it?" Otiende detailed.
He added that the judges ruling declared that only the sovereign people can amend the constitution via a referendum. But without clear direction on the basic structure, how would they seek advice yet they cannot approach the Supreme Court as it is the only court-mandated to offer an advisory opinion.
"Which court do you approach since you are not suing anyone but seeking advice from the court? Our constitution does not allow that! The Supreme Court only advises the National and County governments or State Organs.
"So, if only Wanjiku can initiate a referendum and amend the constitution, how can it be done because popular initiative an alternative to parliament?" he wondered seeking to convince the Appellate judges to overrule the lower court's decision basing on their clarification of the basic structure.
