Nipate
Forum => Kenya Discussion => Topic started by: RV Pundit on March 28, 2022, 12:45:49 PM
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Uhuru has been confidently telling allies BBI will comeback.
Let see if he has bribed enough supreme court judges to end their careers.
BBI if it's okayed - can still make to election - constitution requires chebukati to conduct in 3 months time.
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JerotichSeei saying Martha and her friend Martha the CJ have cooked it well
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BBI verdict if negative may work wonder for UK to galvanize remaining base that has nothing now. BBI path may not always be in judiciary. Dont pray for evil against your enemy all the time.
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Any prediction.My prediction it's going improbable to overturn the work of 13 senior court judges so I expect supreme court job here would be to tighten the loose ends.. really a clean up job and a cogent summary of junior courts decision.I see them avoiding the facts of the case and instead cyrstalling and clarifying the legal issues.. which they already nailed from 22 to 7.. eliminate the mundane that buried BBI and really clarifying what next BBI should do or not do.Any attempts to put BBI on life support will be end of the second republic and the start of the third republic whose configuration nobody knows..1st republic lasted 50yrs..I expect the 12 yr old Republic to last longer
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Let us hope they stay with the lower courts ruling. There is no need for bbi. It just undos cok2010
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All set for the ruling; all seated. The supreme courts judges enters the tents on a file. They delivery of the judgement starts. The case being read...introductions.
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Look like every judge will read their judgement. Consolidated judgement later.
Look like 7 different opinion.
This is not good - it appears they were those bought by Uhuru
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Martha - starts well - says 2010 is 2nd republic - progressive big step for kenya. Speaking nicely so far
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Martha -now sucking uhuru arse and playing politics talking about handshake. She going on and on on BBI process - this one look bought.
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Martha - still setting the background - procedural issues.
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Annoying fan behind Martha as judges are sweating - cant supreme court do better.
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Martha talking about - A Consolidated judgement - seem they is unanimity - not good for BBI? If there was majority & minority judgement then I would be hopeful for BBI
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Martha - Still on procedural issues - respondents - amicus bla de bla.
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Martha - juridisction iko - now onto the issues.
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Martha - Basic Structure - she is reading the lower courts judgement - before she deliver her own
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Martha - Basic structure - mixed reaction - worldwide - accepted and rejected in some countries.
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Martha - Basic structure has not matured.
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Martha - Basic structure - supreme court had developed a model to be followed.
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Martha - we must develop rich jurisprudence - based on kenya situation - kenya history.
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Martha - still going round in circles - yet to declare her basic structure.
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Martha - reading the text behind chapter 16 - it would take a really compromised judges to allow BBI :)
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Martha - Reading CKCR - kenyans do not want constitution to be militated - against indiscriminate ammendment. Abusive ammendment.
Martha - Rigidity and Flexibility - three pathways. Parliament. Popular Initiative. Third pathway - entrenched - 10 protected clauses that required referendum.
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Martha - Going on and on - there is basic structure or eternity doesnt apply
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Martha - Seem to say basic structure do not apply
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Martha - She disagrees with lower courts. Bloody biatch. This one is bought.
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Martha - Constitution is well protected without basic structure - by who?
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Martha - what a loser - she is now giving lame excuses
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Martha - has knocked two goals past 13 judges - says they erred.
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Martha - goin on and on - doesnt explain what overhauling constitution - and what constituent assembly mean.
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Martha - on 2nd Issues - Can president initiate a popular ammendment?
She going on and on on BBI and Handshake
She is campaigning for BBI - patriotism :) bi-partnership - this one is Azimio Judge.
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Martha - Whether can constitutional amendment can be pursued through popular route.
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Martha - Citizenry driven - supposed trigger from below. As opposed to executive.
Look like Uhuru will lose this one.
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Martha - direct democracy - by people - therefore ought to be seen as citizen driven.
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Martha - Again talking nicely - before she bring Azimio position - president has no power to initiative- guardian therefore cannot be player.
Uhuru cannot be player and guardian of the process.
BBI sinks one goal down.
We only need one goal - and we are done with it.
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Martha - Uhuru can abuse the process - therefore his right - is limited.
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Martha - Junet/Waweru is bullshiet - Uhuru and state organs drove BBI.
For once she has restored my faith in her reform credentials.
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Martha - On the 70 constitutuency - 2nd schedule - directed IEBC on it's mandate.
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Martha - on 70 illegal constitutuent - that was sneaked in by Uhuru - therefore null and void
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Most likely you will have to swallow your words.
Martha -now sucking uhuru arse and playing politics talking about handshake. She going on and on on BBI process - this one look bought.
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I will be glad to eat my words - I am like many doubtful of her integrity - considering her appointment.
Most likely you will have to swallow your words.
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Martha - On Uhuru on being above the Law.
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Martha - Judicial overreach - conclusion erred article 143 - civil proceedings cannot be instituted against Uhuru :)
That is where Mpesa went - Uhuru basically clean himself from BBI
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Martha - IEBC had no obligation to check participation
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IEBC not mandated to ensure there is public participation. Not expressly mandated in constitution. This major verdict by CJ.
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Why is major verdict :) - Major verdict is that Uhuru or anyone in power cannot initiate popular initiative - making BBI null and void - ab INITIO
IEBC not mandated to ensure there is public participation. Not expressly mandated in constitution. This major verdict by CJ.
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Public participation stages.
1. Initiation stage - collection of signatures, setting referendum agenda as guaranteed in constitution. Cost should not be on the promoter.
2. Legislative approval.
3. Houses of parliament.
4. Referendum stage
There was reasonable attempt at public participation with respect to the amendment bill, although a late addition to the amendment bill (save for the second schedule of the impugned bill). There is evidence of public participation in the BBI steering committee report. Need for parliament to enact legislation framework for public participation.
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Martha - Now on IEBC quorum - 3 or 5. Constitution is override election. So she will go for 3. IEBC legally constituted.
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Was IEBC having quorum when it conducted the BBI signature verification? Constitution Art 248, 250, 251, 254 provide for composition of IEBC to effectively operate. There seems to be a conflict in the articles with regard to composition of IEBC. Act of Parliament cannot trump normative command of the Constitution. As such, IEBC was constitutionally and legally constituted when it undertook the verification process.
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Framing separate questions in referendum?
Art 257 of constitution had not arisen for IEBC to make a determination of the referendum question. Art 277 (10) was not ripe for determination.
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Martha conclude by 2-4-1. She saves Uhuru and IEBC. Buries BBI.
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Costs?
1. basic structure doctrine not applicable in Kenya under the constitution.
2. President not permitted to initiate referendum. BBI not a popular initiative.
3. Second schedule is unconstitutional due to violations of public participation.
4. Civil proceedings cannot be instituted against president.
5. No obligation on IEBC to ensure public participation. There was reasonable public participation.
6. IEBC had quorum.
7. Interpretation of art 257 on question for referendum was not ripe for determination.
8 Each party to bear own costs.
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Justice Ouko next.
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Justice Ouko - I like that - This is the 2nd republic.
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BBI dead in the water. A very good outcome in case high priest bags State House. Must now find political path not thru judiciary.
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Ouko - Basic structure doesnt apply.
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Justice Ouko shows dilemma when courts allow amendments in some places but with same mouth declare that in some places you cannot touch basic structure. There must be pragmatic solutions to amendment. Limitations to amendment must be specific and unambiguous.
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Basic structure 2-0 - Ouko is just system judge - useless.
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Each generation reserve right to amend the constitution. Cites Chapter 16 of Constitution.
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Ouko - on 2nd issue - who can initiate popular initiative - the people - junet/waweru is bullshiet - BBI dead.
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Legality, legitimacy and constitutionality of the role of president. Handshake of August 2018 between Uhuru and Raila both initiated a 9point BBI. President appointed BBI taskforce via gazette notice. Steering committee established via gazette notice also. Report presented in October 2020 and launched at Bomas of Kenya. Nov 2020, president launches draft bill and collection of 1 million signatures. Popular initiative not defined in the constitution. High Court and Appeal Court were that that this can only be initiated by the people (the man in the market according to Madan). CKRC acknowledged citizen and civil society involvement. Popular initiative originates from CKRC. Junet and Waweru as co-chairs of BBI secretariat seen in that context. They swore an affidavit that the BBI was initiated as public engagement.
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Junet and Waweru of the secretariat came out of the blues are children of the handshake and cannot divorce from BBI.
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President commenced and spearheaded BBI and only passed the baton to Junet and Waweru to continue. President is ineligible to initiate amendment and cannot act as private citizen. He cannot run with the hare and run with the hounds.
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Ouko - president stay on your lane - and wait for constitutional bill after parliament or referendum
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Ouko - Uhuru didnt do anything illegal.
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It is 2-0 null and void; 5 more to go!
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Ouko - public participation - set aside determination
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We only need two more - 4 is enough - and we start celebrating the death of BBI.
It is 2-0 null and void; 5 more to go!
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Leonola - Basic structure only applies to new constitution. Basic structure doesnt apply.
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Leonola - Basic structure only applies to new constitution. Basic structure doesnt apply.
I think it is 3.0; president cannot initiate an amendment and sign it as president!
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Leonala - What - BBI is okay. Disagree with Chief Justice
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Leonal - New Cost null and void. BBI is dead.
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Njoki - Basic structure does not apply.
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Public participation unclear in law, so cannot be predetermined.
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Justice Njoki - huyu ni Muthamaki - I think she give BBI clean bill health. Anyone can present BBI.
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Role of the president: Superior courts framed issues in their own ways not in the constitution and used them illegitimately to determine the matters before them. Words not in the constitution expended court time.
Words like initiate, initiator, citizen-initiated, and private citizen are not in the constitution. The judges erred here. Constitution only has the words promoter and popular initiative. Courts read in their own words and hence changed the whole constitutional context. There is no logical reason given for excluding the president. The learned judges erred.
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Popular initiative is not about who moves it but is about the numbers. That is why constitution gave numbers.
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[Njoki proving sagacious. Very robust reasoning and understanding of the law.]
Silence of constitution on who can initiate popular initiative should have instructed the courts. Art 36 means president is an elected representative of the people. He can under Art 1 exercise delegated sovereign power of the people. Faults superior courts for not considering that the president can exercise delegated power of the people. To see it otherwise is to limit the power of the people through their representative donated to the presndent.
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Seems they killed the Basic Structure Doctrine. This is dangerous , We might require a new consitution in future to do away with Supteme court. As it stands now the Constituion can be amended by whoever whatever and whenever.
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Njoki give BBI clean bill of health. No doubt.
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Write off Njoki Ndungu at your own peril.
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Njoki Ndungu finds Junet and Waweru as promoters of BBI according to affidavit. She cites page 34. [This is different from CJ]. She has cited detail of the BBI documents in dispute. Superior courts overlooked these details. Conclusion: President did not initiate constitution amendment.
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Njuki - finish and go - this one AG Kuhara wrote her judgment - let her Mwilu, Smokin and Ibrahim
She is struggling - to make sense
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NJuki really tried but find BBI schedule in error.
This replica of Lenaola.
Can BBI therefore proceed without 70 const?
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Njokis time is up in SC ,she will be hounded out Max in 2 years time.
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She is now too predictable
Njokis time is up in SC ,she will be hounded out Max in 2 years time.
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BBI is now 2-2. Lenaola and Njoki have found a problem only with 70 const. That can be cured by removing 70 const.
We still need two judges to find Uhuru erred in initiating.
Very dicey.
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I told you write off Njoki Ndungu at your own peril. She punched major holes in Appeal Court and High Court rulings. Good job.
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Hon Smokin Wanjala. Summarized delivery
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Smokin - Basic structure is dubious?
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Smokin - kingeereza tupu - give us the hints.
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Smokin - Basic structure is not applicable.
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Smokin - okay here we go 2-2 - president can or cannot -- great - president cannot initiate.
Okay 2nd leg - is BBI initiated by PORK -
We are 2.5 for those against BBI.
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Smokin - Uhuru is on record he did appoint BBI - taking everything into considerations - president initiation.
We are 3-2 - we need 1 more.
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Now either Ibrahim or DCJ Mwilu can do it for us.
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Ibrahim - agree with Koome on some - disagree on some.
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Ibrahim - look likely to endorse the basic structure.
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Ibrahim - Basic Structure yes
Ibrahim - Justice Tuiyot seem to be guy everyone likes
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Ibrahim - Citizen - ordinary - not Uhuru.
We are 3.5 - just 0.5 point to get done
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IEBC was not quorate? Not sure what I heard. What does Justice Mohammed opinion mean overall? If BBI fall who celebrate? May become new rallying point so azimio find new weapon to gather forces. If upheld it still work. In same way tangatanga will also milk whatever outcome. Azimio probably lose nothing either way but will be happy if upheld. How will tangatanga feel if upheld?
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It's over - Ibrahim has finished Uhuru.
Mwilu - now doing the final prayers for the late BBI - before we throw mud to it.