Court of Appeal President Daniel Musinga has constituted a seven-judge bench to hear the an appeal by the proponents of the Building Bridges Iinitiative (BBI).
BBI proponents through their lawyers had filed an appeal against a recent High Court judgment that technically nullified and declared the initiative illegitimate on grounds that due process was not followed to amend the constitution.
A five judge bench had thrown spanners into the works by ruling that the BBI process did not meet the constitutional threshold in at least fifteen clauses and the hearing of the appeal was set for Tuesday next week to be presided over by Judge Musinga.
Other six judges hearing the appeal include Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt.
In a previous briefing chaired by the Court of Appeal President, along with Justices Roselyn Nambuye and Anne Okwengu, lawyers agreed with the court that the substantive appeal should be heard in full instead of hearing applications.
Senior Counsel James Orengo, who is appearing for BBI and ODM leader Raila Odinga, had said the appeal they have filed is extremely urgent and needs to be disposed of expeditiously.
Pro-BBI leaders, including President Uhuru Kenyatta and Mr Odinga, are betting the Court of Appeal to intervene and halt the implementation of the High Court decision that stopped the push to amend the Constitution.
The High Court had ruled that the President acted in excess of his powers and contravened the Constitution, in particular Chapter Six, when he initiated and promoted a constitutional change.
The five-judge bench, in a judgement that was read virtually for more than four hours, said the 14-member BBI taskforce and the steering committee led by former Garissa Senator, the late Yusuf Haji, was an illegal entity.
The bench led by Justice Joel Ngugi said the President made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue that is not available to him. He should have used parliamentary initiative by petitioning the National Assembly through the Attorney-General to consider the desired amendments, the court ruled.
BBI supporters are banking on the Appellate Court to salvage the plan birthed by the “Handshake” so that the effort and resources expended so far does not go to waste.
By Alice Gworo
