NAIROBI, Kenya, Aug 20 – The Court of Appeal on Friday upheld the judgment of the High Court which declared the Constitution of Kenya amendment bill 2020 popularly referred to as the Building Bridges Initiative (BBI) as irregular, illegal and unconstitutional.
The bill which sought to institute fundamental changes to the country’s constitution saw the president of the appellate court, Justice Daniel Musinga in part while issuing his orders also say, “the constitution of Kenya amendment Bill 2020 is unconstitutional and a usurpation of the people’s exercise of sovereign power.”
Road To The ‘Handshake’
On March 9, 2018, the country was shocked following unexpected events that saw President Uhuru Kenyatta and his the political nemesis ODM leader Raila Odinga at the footsteps of Harambee House in Nairobi partake in a symbolic handshake, while pledging to cease all hostilities as they set a new course that would usher in a new dispensation.
The results of the surprising turn of events that caught off-guard both proponents’ closest allies went on to birth what we identified as the Bridges Initiative (BBI) after the contentious 2017 elections.
On Friday, at the corridors of justice, the journey spanning almost three years came to an abrupt halt following concerted efforts and a legal onslaught that sought to correct what critics considered an abuse of power…ultimately stopping the infamous ‘reggae’ movement.
The seven Judge bench consisting of Justice Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott of the appellate court made the consequential judgement.
BBI is Unconstitutional
While issuing the orders, Justice Musinga revealed that a majority of the justices were in accord that the basic structure doctrine is applicable in Kenya and that it limits the amendment power set out in Articles 255 – 257 of the Constitution.
“The basic structure of the Constitution can only be altered through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum,” said Justice Musinga.
The court further ruled that president Kenyatta does not have authority under the Constitution to initiate changes to the Constitution.
As a result, the declared that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution.
Critics of the bill said the presidents’ attempts were akin to delegating himself the roles of the proponent and even the referee, which would give them an unfair advantage in determining the outcome of the process.
Furthermore, Justice Musinga said county assemblies and Parliament, “cannot, as part of their constitutional mandate, change the contents of the Constitution of Kenya Amendment Bill, 2020 initiated through a popular initiative under Article 257 of the Constitution.”
The court however set aside the order of the High Court that President Kenyatta contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution but ruled civil proceedings may be instituted against him.
“Civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution,” he said.
Though the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (The BBI Steering Committee) was said to lack the legal capacity to initiate any action towards promoting constitutional changes , the appeal court set aside orders by the High Court that its establishment by president vide a Gazette notice was unconstitutional and as such an unlawful entity.
The collection of endorsement signatures was also described as flawed by a majority of the justices who pointed out to a lack of proper legislation governing the exercise which included, the collection of signatures, presentation and verification.
“There was neither an adequate legal or regulatory framework to govern the conduct of referenda,” reads a section of the Judgement.
Musinga ruled that IEBC had contravened its administrative procedures during the verification of signatures, declaring it illegal, null and void because it lacked the requisite quorum. As a result, the electoral body was found to be in violation of Sections 5, 6 and 11 of the Statutory Instruments Act, 2013.
The High Court in its ruling had initially faulted the proponents of the bill saying attempts to create an additional 70 constituencies was tantamount to, “establishing a new form of government” contrary to that in the current constitution.
The Independent Electoral and Boundaries Commission Chairman Wafula Chebukati had in the past termed the move to determine the establishment of constituencies as the sole mandate of the electoral body and not politician.
“The second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to: predetermine the allocation of the proposed additional seventy constituencies, and to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation, is unconstitutional,” he said.
IEBC was directed to desist from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill, 2020.
Political Leaders React to Judgment
Various leaders took to social media to react to the ruling including former Prime Minister Raila Odinga who said, “we have to move on.
Odinga added that the decision of the court of appeal is “remarkable as it forms part of the continuing conversation on the future of Kenya and the significance of the new constitution to the nation’s political culture.”
He further said that the ruling did not signal and end of the ‘conversation’ saying parties involved will make a decision on how to proceed based on the ruling.
“This is not an indication of our regard to this noble initiative, far from that, we feel that e must now see the first for the trees and pursue the bigger goal of setting the issues facing this country right.” the Orange Democratic Movement leader said in a statement.
The longtime opposition leader recently launched what many perceived to be his presidential bid by unveiling his national unity plan dubbed, ‘Azimio La Umoja’.
Meanwhile Deputy President William Ruto appeared ecstatic in a tweet saying “God came through for Kenya.”
“Our God,help the alliance of the unknown, the jobless,the Hustlers & struggling farmers to now engineer our economy from bottom-up,” the Deputy President said.
Ruto is on record criticizing the BBI initiative. He had termed it as a ploy of a few to ‘divide’ government jobs amongst themselves.
Following the Judgement, Amani National Congress (ANC) leader Musalia Mudavadi said the spirit of the Constitution, “is bigger than all of us,”
“We vested the power to interpret it in the courts. The judges have pronounced themselves, let us respect the judgment & focus on the revival of the economy as we foster National Cohesion,” Mudavadi, who is among leaders seeking the country’s presidency next year said.
Wiper party leader Kalonzo Musyoka called on all parties involved to respect the Court of Appeal’s decision and set their sights on nation building.
“Today the court of appeal has delivered its judgment, no nation can exist outside the rue of law and no constitution can exist without constitutionalism. There is no loser in this process. A stronger democracy, a greater Kenya,” the former Vice President said.
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