A big blow to BBI referendum push

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From Left: Lady Justice Teresia Matheka, Justices George Odunga, Joel Ngugi (Presiding) Jairus Ngaah and Chacha Mwita at a Court in Milimani Law Courts on May 13, 2021.
From Left: Lady Justice Teresia Matheka, Justices George Odunga, Joel Ngugi (Presiding) Jairus Ngaah and Chacha Mwita at a Court in Milimani Law Courts on May 13, 2021.

A High Court on Thursday 13th May 2021 declared the Building Bridges Initiative (BBI) driven Constitution of Kenya Amendment Bill 2020 as unconstitutional citing that the whole process violated the constitution of Kenya 2010.

The five judge bench of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said an amendment can either be initiated by a Parliamentary or popular initiative but not the President.

The judges cited the president for again failing to actualize the constitutional requirement on public participation accusing him of coming short of violating a law he vowed to defend when he took his oath of office as the President of the Republic of Kenya.

The court also found that the Independent Electoral and Boundaries Commission (IEBC) had the sole role of determining boundaries and that the BBI proposal for the creation of 70 new constituencies was against the law and went against the principle of public participation.

“It is our finding that popular initiative is power reserved for Wanjiku neither the president or any other state organ can utilize Article 257 to amend the Constitution,” ruled the judges.

“Kenyans intended that the essence of constitutional order they were bequeathing themselves in 2010 would only be changed in exercise of primary constituent power that is through civic education, public participation, constitutional assembly plus a referendum and not through secondary constituent power which is through public participation and referendum only.”

The case arose from eight petitions which had been lodged at the High Court raising 17 issues.

Some of the pleadings of the petitioners included whether BBI satisfied the constitutional interpretation of a popular initiative, whether the referendum will have one question or multiple questions, and also who has the mandate of creating constituencies among others.

Here is a summary of yesterday’s ruling by the Five-bench judges at Milimani courts;

  1. A declaration is hereby made that civil procedures can be initiated against a sitting President or person performing functions of the President during tenure of office in respect to anything done contrary to the Constitution.
  2. A declaration is hereby made that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through parliamentary initiative under Article 256 of the Constitution or through popular initiative under article 257 of the Constitution.
  3. A declaration is hereby made that the steering committee on implementation of the Building Bridges Initiative (BBI) task force to a united Kenya report established by the President vide gazette notice number 264 on January 3, 2020 and published in a special gazette issue of January 10, 2020 is an unconstitutional and unlawful entity.
  4. A declaration is hereby made that being unconstitutional and illegal entity, the BBI Steering Committee has no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.
  5. A declaration is hereby made that the entire BBI process culminating to launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of people’s exercise of sovereign power.
  6. A declaration is hereby made that article 257 sub Article 10 of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people.
  7. A permanent injunction is hereby issued restraining the Independent Electoral and Boundaries Commission (IEBC) from undertaking any processes required under Article 257 (4) and 257 (5) in respect of the Constitution of Kenya Amendment Bill, 2020.
  8. The prayer for an order that Mr Uhuru Muigai Kenyatta (refund) the public funds used in the unconditional change process… is declined.
  9. The prayer for the order that the Attorney-General and other public officers who have authorised the use of public funds in the unconstitutional constitutional change process promoted by the steering committee (refund) the funds is declined.
  10. A declaration is hereby made that Mr Uhuru Kenyatta has contravened the chapter six of the Constitution and specifically, article 3(1)(a) (1) while initiating and promoting a constitution change process contrary to provisions of the Constitution on amendment of the Constitution.
  11. A declaration is hereby made that the entire constitution change process promoted by the BBI Committee is unconstitutional, null and void.
  12. A declaration is hereby issued that the Constitutional Amendment Bill, 2020 cannot be subjected to a referendum before the IEBC conducts a nationwide voter registration.
  13. A declaration is issued that the IEBC has no quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the second schedule of the Act for purposes of carrying out its business relating to the conduct of the proposed referendum, including verification of signatures in support of the Constitutional Amendment Bill, 2020 under article 257(4) of the Constitution submitted by the Building Bridges Initiative secretariat.
  14. A declaration is hereby issued that at the time of the launch of the Constitution Amendment Bill, 2020 and collection of endorsement signatures, there was no legislation governing collection, presentation and verification of the signatures or a legal framework to govern the conduct of a referendum.
  15. A declaration is issued that in absence of the legislation or legal framework to govern collection, presentation and verification of signatures and conduct of a referendum in the circumstances of this case renders attempt to amend the Constitution of Kenya through the amendment bill 2020 flawed.