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Appeal court allows Thirdway Alliance to file additional evidence in BBI case » Capital News

NAIROBI, Kenya, Jun 26 – The Court of Appeal on Friday allowed the Thirdway Alliance party to file additional evidence in the Building Bridges Initiative suit set to begin on June 29.

The court allowed two files including the join parliamentary Justice and Legal Affairs Committee (JLAC) report and the Hansard of the Senate on the debate and approval by the Senate of the Constitution of Kenya (Amendment) Bill, 2020, which was annulled in totality by the Constitutional Court prompting the appeal.

The National Assembly and the Senate passed the Amendment Bill on May 6 and May 12 respectively.

Thirdway Alliance had argued that the Joint JLAC Report provides a detailed analysis by Parliament of the Amendment Bill for its constitutional and legal validity, including the recommendation that a legal framework is required for processing of amendments to the Constitution by popular initiative.

Eighteen out of the 27 members of the joint parliamentary JLAC team penned their signature on the majority report of the BBI bill.

In the ruling issued by Justices Daniel Musinga, Jamila Mohammed and Roselyne Nambuye, the appellate court noted that the two reports are relevant to the matters under consideration in the BBI appeal case.

The court ruled that there would be no serious prejudice that would be occasioned to any party by production of the additional evidence

“We equally think that it cannot be disputed that the Report is relevant to the matters under consideration in these consolidated appeals,” the judges noted.

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The Speakers of the Senate and the National Assembly had raised concerns that the production of the Joint JLAC Report amounts to an infringement of the freedom of speech and debate in Parliament.

“Alongside the objections raised by the Speakers of the Senate and the National Assembly, the Attorney General and the Independent Electoral Boundaries Commission, (IEBC) regarding admissibility of the intended evidence, we must also consider the question of proportionality and prejudice that may be occasioned if we were to grant the orders sought,” the three judges said while dismissing the Speakers of the two houses.

The Appellate court further clarified that  in appropriate instances, the Court may intervene if it is demonstrated that Parliament has contravened the Constitution.

“In our view, therefore, in appropriate instances, the Court, without being deemed to be infringing on parliamentary privileges or acting contrary to the doctrine of separation of powers, may intervene if it is demonstrated that Parliament has contravened the Constitution,” the judges ruled.

The judges further gave two days to any respondent wishing to file any affidavit in response and related to the production of the two documents.

“Any respondent who wishes to file any affidavit in response, pursuant and related to the production of the documents stated hereinabove may do so within the next two (2) days, so that the hearing of this appeal proceeds as scheduled,” the ruling indicated in part.

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