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NAIROBI, Kenya, May 26 – President Uhuru Kenyatta has filed a notice of appeal against the High court ruling which faulted him for launching the Building Bridges Initiative (BBI) constitution amendment process.
In his application filed by lawyer Waweru Gatonye, the president argues that the five-judge bench erred by determining the case without ensuring personal service had been effected upon him.
He also faulted the judges for failing to determine whether he can be sued in his personal capacity and not as the President of Kenya.
“The learned judges held that Kenyatta ought to have responded to the petition either himself or by his duly appointed representatives and contested Kenyatta’s inclusion in the petition on any ground that would be available to him and not through the Attorney General,” he said, “The judges proceeded to hear and determine a matter against Kenyatta without ensuring that personal service had been effected upon him.”
As part of his concerns, Kenyatta protested the judges’ decline to include him in the petition in a personal capacity and not through the Attorney General.
He faulted the ruling that the ‘President did not enter an appearance in the proceedings and neither did he file any grounds of objection to contest the proceedings on the ground of misjoinder, or any other ground for that matter.’
Gakonye further objected to the judges ruling that a civil case could be instituted against the President or a person performing the functions of the president and that the entire BBI process was unconstitutional.
Justices Joel Ngugi, George Odunga, Jarius Ngaah, Chacha Mwita, and Teresiah Matheka in their ruling, declared that the basic structure of the constitution could only be amended by invoking a four-phased process entailing, “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
The judges found President Uhuru Kenyatta to have violated the Constitution, particularly Chapter 6, when he initiated the process following his handshake with former Prime minister Raila Odinga.
“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,” the bench ruled.
The BBI Secretariat has also filed a notice of appeal, with the Independent Electoral and Boundaries Commission (IEBC) also set to appeal a section of the judges that it was not properly constituted when it verified BBI signatures.
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