Seven Court of Appeal Judges on Friday, August 20, upheld a ruling by the Kenyan High Court that declared the Building Bridges Initiative (BBI) constitutional amendments ilegal, null and void.
The seven appellate court judges were: Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott.
Justices Musinga, Gatembu, Kiage, Okwengu, and Tuiyot upheld the High Court’s decision, while Justices Nambuye and Shichale disagreed.
Of the seven Judges, only Justices Nambuye and Shichale supported the review of the Constitution with the remaining five upholding the High Court judgment.
Justice Daniel Musinga
Daniel Musinga is the President of the Court of Appeal judges.
The soft-spoken but firm jurist Judge Musinga has been a distinguished jurist and was admitted as an advocate of the High Court of Kenya in 1988.
He was appointed as a member of the tribunal to investigate the conduct of suspended high court judges in 2003 and in October the same year, he was formally appointed as a Judge of the High Court of Kenya.
He was then posted in Nakuru and sat on the bench there until December 2007. He later sat on the bench at the High Court in Kisii between 2008 and 2010.
Since his appointment, Judge Musinga has been involved in many high-profile cases, including cases invalidating the elections of various Members of Parliament.
In his verdict, Justice Musinga said the Constitution of Kenya Amendment Bill 2022 could amount to the dismemberment of the constitution.
Justice Hannah Okwengu
Justice Hannah Okwengu is a graduate with a Bachelors’s Law degree from the University of Nairobi.
She first worked as a Land Registrar in Mombasa, before moving to the Municipal Council of Mombasa where she worked as an Advocate for 3 years.
Okwengu then joined the Firm of S.K. Mwangi and Co. Advocates where she worked for about a year before moving to the Judiciary as an Ag. Resident Magistrate.
She says, that the amendments to the constitution must pass the substantive test, the spirit, and purpose of the Constitution.
“Constitutions are like human beings; they are never perfect. Each Constitution responds to different circumstances. An amendment is an alteration of the Constitution that is carried out within the confines of the existing Constitution,” she said.
Justice Patrick Kiage
Justice Patrick Omwenga Kiage was born on 6 September 1969 in Kisii Kenya.
Kiage attended Alliance High School before He attended the University of Nairobi for his law degree and the Kenya School of Law for a diploma in legal practice.
He holds a Master of Laws degree in Public Service Law from New York University where he majored in Human Rights and Criminal Justice.
In his verdict, Kiage argued that the independence constitution was several times amended diluted, dissolved, abused for narrow partisan ends.
“The same way new wine cannot be stored in old wineskins, it will be totally illogical to try and squeeze a transformative constitution within the suffocating straight jacket strictures of formalistic or positivistic interpretation,” he said.
Justice Kairu Gatembu
Justice Steven Gatembu Kairu is a judge of the Court of Appeal.
He was named by President of the Appellate Court Justice Daniel Musinga as one of the seven judges who will hear the Building Bridges Initiative (BBI) case from June 29 to July 2, 2021.
In his verdict, Gatembu said that the power to make fundamental amendments to the constitution belongs to the constituent or sovereign assembly.
Gatembu says that the president doesn’t fall under the definition of a “General Public” in regard to undertaking popular initiatives.
“The president did not initiate the said process as a private citizen and was acting in his official capacity.”
Justice Francis Tuiyot
Francis Tuiyott is the Judge of the Court of Appeal of Kenya.
In his verdict, Tuiyot argued that that the IEBC did not have the quorum when it embarked on the verification of signatures.
“IEBC was not quorate when it embarked on the business of verifying BBI signatures. The Commission needed to be in the right quorum. A drastically reduced membership could lead to the public losing confidence in the ability and neutrality of the Commission.”