The Nation (Nairobi)

18 August 2005

Kenya: It's D-Day for Law Review Battle

Nairobi — Chief Justice Evan Gicheru is scheduled to hear a case this morning that could decide the fate of Kenya's new Constitution.

It was filed jointly by 15 Liberal Democratic Party and Kanu MPs plus the Katiba Watch pressure group and attempts to stop the attorney general from publishing the new Constitution Bill.

And the hearing comes just six days before the publication deadline set by law.

Fourteen of the MPs and their three lawyers yesterday went to the Nairobi law courts to plead for a speedy hearing, in case AG Amos Wako publishes the Bill before their case is determined.

They were told late in the afternoon that the CJ was expected to decide today whether or not to consolidate their case with two others pending before the courts on the same issue.

Mr Wako and his team of drafters are working around the clock at Leisure Lodge Club and Resort in the South Coast to beat the August 24 deadline.

For the MPs, one of their lawyers, Mr James Orengo, said he was happy the CJ had agreed to give direction on the case. "Let us wait and see what happens. So far so good," Mr Orengo declared.

Mumias MP Wycliffe Osundwa said the MPs "would camp in the courts until the case was heard and finished".

"We cannot let a few people write a Constitution for over 30 million Kenyans. We have to stand by the Bomas Draft which contains the views of Kenyans," he said.

Another of the lawyers, Mr Pheroze Nowrojee, said they would be asking the CJ to allow the matter to be heard in public in light of the interest it had generated.

He added it had been decided to consolidate the MPs' case with other two - one filed by the Yellow Movement pressure group, and the other by Mr Job Nyasimi Momanyi and others - which also seek to block the AG from publishing the Bill.

Earlier in the day, the case was referred to the chief justice by High Court judge Joseph Nyamu after Mr Orengo and Mr Nowrojee, who also represent the Yellow Movement, appeared before him.

Then the deputy solicitor general, Ms Muthoni Kimani, made an application that the case be referred to the CJ for consolidation with two others on the same subject.

All the parties agreed that the case be referred to the CJ but were hesitant to accept the consolidation, saying there could be a technical problem.

Last Thursday 15 MPs from both parties, plus seven members of Katiba Watch, went to court under a certificate of urgency seeking to stop Mr Wako from publishing the Bill.

They also want an order to restrain the Electoral Commission of Kenya from conducting a referendum on the new Constitution.

The MPs based their application on the ground that the AG has no powers to by-pass Parliament by taking the Bill directly to the public for their vote.

Parliament, the MPs argued, had no power under the present Constitution to give the AG a mandate to write and publish a new Constitution.

They argued the authority to make laws was Parliament's alone, and could not be exercised only by President Kibaki and Mr Wako.

Mr Wako had no powers to write and publish a new Constitution even after receiving the Bomas Draft and recommendations from Parliament on the contentious issues it contained, they had argued.

And President Kibaki too, they said, had no powers to sign a new Constitution into law.

The AG is expected to publish the Bill before the August 24 deadline, according to the Constitution of Kenya Review Act, to allow the Electoral Commission chairman Samuel Kivuitu conduct a referendum within 90 days.

Yesterday, the 14 MPs who returned to court wanted the case to be given an early date.

"This is one case that should be certified urgent and given the earliest hearing date possible before the attorney general publishes the draft Constitution between August 21 and 25," said Mbita MP Otieno Kajwang'.

Speaking at the High Court yesterday, Mr Kajwang' said if the case were not given an early hearing, it would be overtaken by events, rendering it useless.

"The case should be determined before Kenyans go to the referendum to enable them make an informed decision on what they would be voting for. The alternative is to ask Kenyans to vote No," Mr Kajwang' said.

Eldoret North MP William Ruto said they would insist the case be heard in the open court, "as it was a national issue that had generated a lot of interest."

The MPs who went to court yesterday were Mr Justin Muturi (Siakago), Mr Peter Owidi (Kasipul Kabondo), Mr Reuben Ndolo (Makadara), Mr Sammy Weya (Alego Usonga), Prof Ayiecho Olweny (Muhoroni), Mr Osundwa, Mr Kiema Kilonzo (Mutito), Mr Chris Okemo (Nambale), Mr Musa Sirma (Eldama Ravine), Mr Charles Keter (Belgut), Mr Joseph Lagat (Eldoret East), Mr Daudi Mwanzia (Machakos Town), Mr Ruto and Mr Kajwang'.

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