This archive report was first published on 26 June 2021.
On June 25, 2021, the Court of Appeal in Kenya made a significant ruling in the Building Bridges Initiative (BBI) case, allowing the Thirdway Alliance party to file additional evidence. This decision was made just days before the case was set to begin on June 29, 2021.
The court allowed the Thirdway Alliance to file two additional documents: the joint parliamentary Justice and Legal Affairs Committee (JLAC) report and the Hansard of the Senate on the debate and approval of the Constitution of Kenya (Amendment) Bill, 2020. This bill was annulled in totality by the Constitutional Court, prompting the appeal.
The National Assembly and the Senate had passed the Amendment Bill on May 6 and May 12, 2020, respectively. The Thirdway Alliance argued that the Joint JLAC Report provides a detailed analysis by Parliament of the Amendment Bill's 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 had penned their signature on the majority report of the BBI bill. In the ruling, 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 the production of the additional evidence. The judges also noted that the reports are relevant to the matters under consideration in the BBI appeal case.
"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.
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. However, the appellate court dismissed these concerns, stating that in appropriate instances, the Court may intervene if it is demonstrated that Parliament has contravened the Constitution.
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.
