BBI Case Filed at Supreme Court

The Supreme Court of Kenya
The Supreme Court of Kenya.

A city lawyer has moved to Supreme Court seeking to overturn a section of the judgment issued by the Court of Appeal on the Building Bridges Initiative.

Lawyer Morara Omoke moved to the apex court on Tuesday, August 24, seeking to compel the country's top court to uphold an earlier ruling by the High Court that allows for multiple questions in a referendum. 

In his argument, Omoke wants the Supreme Court to reinstate a ruling that each of the 74 clauses proposed for amendments in the constitution should be voted for or against as a stand alone.

In its judgment on the legality and constitutionalism of the BBI on Friday, August 20, the Court of Appeal (CoA) set aside an earlier ruling by the High Court that established the independence of the 74 clauses proposed for amendments. 

The lawyer argues that the Constitution requires all the specific proposed amendments be submitted as separate and different referendum questions.

He argues that the Appellate Court erred by ruling that all the clauses proposed for amendments can be submitted as an omnibus bill.

7-bench Court of Appeal judges hearing the BBI case

Omoke argues that an omnibus bill would violate election principles and the freedom and right to vote. Further, the lawyer stated that an omnibus bill may contain one or more objectionable subjects lumped together with good amendments.

The lawyer further argues that such a bill is likely to confuse voters, adding that it would deny them the freedom of choice.

He also asked the apex court to determine whether the Constitution envisions the event of a bill to amend it by popular initiative in the form of an omnibus bill or whether specific reformations are to be submitted as separate and different questions.

According to the lawyer, the final report of the Independent Commission on Referendums released in July 2018, states that a binary question could not capture the views of the voters and also adds that binary choices can encourage sharp divisions.

His petition comes a day after the Attorney General hinted at the government’s intention to move to the Supreme Court to determine three issues, key among them being the applicability of the basic structure doctrine.

The AG will also be seeking clarification on the remit of a constitutional amendment by popular initiative and presidential immunity.

This comes amid a call by ODM National Assembly Minority Whip, Junet Mohammed, to dismiss documents that were circulating on social media purporting that the BBI secretariat would move to the Supreme Court to challenge the judgment by the CoA.

Suna East MP Junet Mohamed, IEBC Chair Wafula Chebukati and BBI Secretariat Co-Chair Dennis Waweru submit signatures at IEBC headquarters on December 10, 2020
Suna East MP Junet Mohamed (left), and BBI Secretariat Co-Chair Dennis Waweru (right) submit signatures to IEBC Chair Wafula Chebukati (centre) at IEBC headquarters in Nairobi on December 10, 2020