Attorney General Paul Kihara Kariuki and the Independent Electoral and Boundaries Commission (IEBC) on Friday, September 3, 2021 filed an appeal at the Supreme Court challenging the judgment by the Appellate Court on the Building Bridges Initiative (BBI) case.
“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,” reads court documents.
In the said judgment, a seven-judge bench upheld a ruling by the High Court that BBI was unconstitutional.
Through Solicitor General Kennedy Ogeto, the AG says he intends to challenge the court’s verdict on among others the applicability of the basic structure doctrine, remit of constitutional amendment by popular initiative and presidential immunity.
The AG is seeking the Apex Court’s interpretation on whether the basic structure doctrine is applicable in Kenya.
The AG will also challenge the Court of Appealing ruling that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution.
A majority of the judges had ruled that the BBI process was not a popular initiative as it was promoted by President Uhuru Kenyatta in his capacity as the Head of State.
On the decision of the court that the President can be sued in his personal capacity under his tenure, Kariuki insists that the judges contradicted the constitutional provisions on presidential immunity.
IEBC, on the other hand, intends to appeal the Court of Appeal’s findings on constitutional composition, quorum and mandate of the IEBC.
The majority of the judges had ruled that the electoral body was not properly constituted when it verified BBI signatures.