Mombasa high court has referred a case blocking referendum to the Acting Chief Justice Philomena Mwilu.
High court Judge Eric Ogolla placed the case before Ms Mwilu for Empanelment of a bench that will determine the petition.
Ogolla also ruled that Mwilu can also choose to forward the case to an already existing five-judge bench in Nairobi that hears other BBI- related cases.
Muslims for Human Rights (MUHURI) sued IEBC over BBI signature verification and the speakers of the National Assembly and Senate over lack of a requisite law that provides for a referendum or challenges its process, and result.
IEBC, in reply to a letter by MUHURI Chairman, Khelef Khalifa, dated December 2020, admitted it does not maintain a database of specimen signatures of registered voters, the petition reads. The electoral body disclosed it relies on “biographic and biometric data” in verification.
On Monday, Mombasa resident judge, Erick Ogolla, said the petition raised substantive issues that are of public interest.
BBI taskforce, an interested party, wants the case heard before the Nairobi bench. Its lawyer, Paul Mwangi, said issues before the bench are like MUHURI’s.
But MUHURI lawyer Caroline Kituku, said the cases are distinct.
The cases
“One of the petitions in Nairobi is challenging the constitutionality of the entire BBI process to the effect that it is being sponsored by the state and not through a popular initiative as required by law,” Kituku said.
She said another petition queries whether BBI is the properly mandated body to draft the referendum bill in the absence of the Attorney General (AG) and Kenya Law Reforms Commission (KLRC).
“Another case challenges BBI’s mandate in creating new constituencies and the right for the diaspora people to participate in a referendum.”
Kituku said MUHURI’s case does not raise these issues, instead, it questions IEBC’s mandate and power to enact administrative procedures they used in verifying BBI signatures.
“What remains as a sacrum of the petition is whether or not the respondents have violated the constitution,” Kituku said.
“It has failed to enact a requisite law that will provide a referendum. Now, there is no law or mechanism allowing citizens to challenge the referendum or its results,” Kituku said.
MUHURI had sought two conservatory orders—blocking IEBC from verifying BBI signature and certifying the Constitution of Kenya (Amendment) Bill, 2020 and forwarding it to county assemblies.
