BY SAM ALFAN.
Attorney General Kihara Kariuki has moved to the Court of Appeal seeking to suspend a judgement that found plans to amend the constitution illegal.
In an application under certificate of urgency, Kihara wants the court with to suspend implementation of the judgement issued by a bench of five judges, pending his appeal.
The AG argues that the government will suffer prejudice as David Ndii and others will proceed to execute the orders rendering the intended appeal useless, a move that will cause citizens at large irreparable harm.
“Unless this application for stay of execution of the orders is heard urgently, there is real risk that the finding contained in the court judgement dated and delivered on May 13, 2021 will be fully delivered occasioning great prejudice to the attorney general”, he claim.
The AG argues the case is of public interest.
In the judgement on Thursday, the court declared entire process promoted by the Building Bridges Initiative (BBI) as unconstitutional, null and void.
Judges Prof Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita declared the steering committee appointed by President Kenyatta to implement the changes as an unlawful entity. They also ruled that the president violated the constitution as he has no powers to initiate constitutional changes through popular initiative.
The court issued a permanent injunction restraining the Independent Electoral and Boundaries commission from undertaking any process required under Article 257(4) and (5) in respect of the constitution of Kenya (Amendment) Bill 2010.
The judges also ruled that President Kenyatta does not have the power to directly initiate constitutional amendment under the law since parliament is the only organ with that power.
“It is our finding that popular initiative is a power reserved for Wanjiku neither the president or any other state organ can utilize article 257 to amend the constitution,” ruled the bench.
In their 243 page judgement, the Judges said the President cannot purport to directly initiate a constitutional amendment and he isn’t part of parliament.
The court further said the president has no power under the constitution to initiate changes under the constitution since parliament is the only state organ that can consider the effecting of constitutional changes and he is not permitted to amend the constitution using popular initiative.
