Kenya: Lawyer Morara Omoke Takes Bbi Fight to Supreme Court

(File photo).
19 September 2021

The Supreme Court has been petitioned to determine whether a Bill to amend the Constitution should concern one or multiple issues, as battle between the government and a group of private citizens on the Building Bridges Initiative (BBI) start taking shape at the top court.

In the appeal filed by lawyer Morara Omoke, the Supreme Court has been tasked with determining whether Article 257 (10) requires an amendment to the constitution be presented to the voters in form of separate and distinct referendum questions, or multiple amendments may be contained in a single referendum ballot paper.

He wants the Supreme Court to set aside a finding of the Court of Appeal that a proposed referendum on multiple amendments of the constitution, like the BBI bill, which proposed 74 amendments of unrelated laws, can be submitted as a single question to the voters.

The lawyer says that the appellate court bench headed by Justice Daniel Musinga erred in law and misinterpreted and misapplied the provisions of Article 257 (10) of the constitution.

In his view, a single question for each proposed amendment can enable the people to have a clear picture of the exact issue they are being called to vote upon, as opposed to being asked to vote for an omnibus bill that proposes multiple changes.

That a process which has single and distinct multiple questions would avoid a situation where a voter is compelled to throw out the baby with the bath water, since the omnibus bill may contain one or more objectionable matters, which had been lumped together with good amendments.

He says the principle of public participation as envisioned in the constitution requires the public to be accorded an opportunity to participate in the referendum process by being afforded an opportunity to freely decide whether they support each and every proposed amendment to the constitution.

Mr Omoke argues that an omnibus bill is a violation of the principles of election and freedom and right to vote. That both Article 257 (10) and Article 38 (3) of the constitution bestow each voter with a right to vote in a referendum without any unreasonable restriction.

In addition, Mr Omoke wants to be awarded costs of the appeal to be paid jointly and severally by President Uhuru Kenyatta, ODM party leader Raila Odinga, the Attorney General and the Independent Electoral and Boundaries Commission (IEBC).

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