The battle to save the Building Bridges Initiative (BBI) has began in earnest after the Attorney General Paul Kihara filed a notice of appeal against the High Court judgement that declared the Initiative unconstitutional.
This will no doubt be Kihara’s greatest test as the head of the Kenyan State Law Office and the principal legal adviser to the government of Kenya.
One can be forgiven to say that AG Kihara who was nominated by the President Uhuru Kenyatta on 13 February 2018, has not had a more testing assignment.
All eyes will be on Kariuki as he seeks to overturn the recent rulling by High Court that annulled the BBI referendum process last week.
Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita upheld a consolidated case by eight petitioners that the constitution bears essential features on its basic structure that cannot be amended.
The petitioners had further argued that BBI referendum bill was not the will of people but based on the changing political and socio-economic interests.
In his court papers, Kihara has stated thus:
“…the 1st respondent will suffer prejudice as the applicants will proceed to execute the orders rendering the appeal nugatory and causing not only the 1st respondent but also the citizens of Kenya at large irreparable harm,” read part of the court papers submitted by Kihara.
The AG filed an application seeking stay orders of the execution of the appeal – arguing that he will suffer prejudice if the stay orders are not granted.
The Solicitor General Kennedy Ogeto said no prejudice will be occasioned to the petitioners in the event the Court of Appeal stays the judgement of the orders issued on Thursday.
The AG filed the application for stay under a certificate of urgency saying that due to the immense public interest, it is in the interest of justice for the Court of Appeal to stay the implementation of the orders pending hearing and determination of the case.
The legal battle is set to be a gruelling one as many others have sought to file appeals of there own.
Lawyer Arnold Oginga and Paul Mwangi for the BBI task force steering committee, the BBI National Secretariat and former Prime Minister Raila Odinga are said to be filing an appeal.
Raila had last week expressed his disappointment at the ruling and promised to appeal.
This was after the High Court held that the BBI secretariat and steering committee failed to provide critical information to the public, and that the president cannot initiate a process to change the constitution.