The affair concerning the proposed constitutional reform, known as the BBI (Building Bridges Initiative), does not seem to be over yet. Only a few weeks ago it seemed to have run aground for good, given that even in the wing of the promoters of the proposal there were voices of discontent about the length of time this affair was taking. Above all Ruto, vice-president and for some time in a leadership struggle with Kenyatta, who had never liked the proposal; and Odinga, the opposition leader, who precisely on the issue of the BBI had formed an unpredictable alliance with his rival Kenyatta, who had declared that the issue would not be taken all the way to the Supreme Court.

Instead, Kariuki, former president of the court of appeal and since 2018 Kenya’s attorney general, formally challenged the court of appeal’s decision dated 20 August 2021, by going to the supreme court, the last body that can adjudicate this dispute. 

On 13 May, the Nairobi court issued its first ruling on the matter, declaring the proposed constitutional reform unlawful on the grounds that it was impossible for the president to propose an amendment to the constitution, a power that rests solely with the people represented by parliament or a popular referendum. The court of appeals had taken up these grounds in its August session, including the possibility of Kenyatta being prosecuted.

The Attorney General allegedly raised eight issues that he disagreed with the Court of Appeal’s ruling. In particular, he argued that it was not possible to prosecute the president, who enjoys immunity, and could only be done after his term had expired; he also believed it was untrue that the president could not call for changes in the constitution and that the BBI was, therefore, illegal.

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