Court declares BBI referendum process illegal

The High Court has annulled the BBI referendum process throwing the future of the initiative into uncertainty.

A bench comprising Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita upheld a consolidated case by eight petitioners that the constitution bears essential features on its basic structure that cannot be amended.

The petitioners had further argued that BBI referendum bill was not the will of people but based on the changing political and socio-economic interests.

The court held that the BBI secretariat and steering committee failed to provide critical information to the public as outlined in the procedures to amend the constitution through a popular initiative.

The Court also observed that the president cannot initiate a process to change the constitution in the pretext of promoting national unity.

The court declared that the Doctrine of Basic Structure limits the power to amend the constitution and that the president has no authority to initiate changes through popular initiative.

The judges held that the BBI steering committee was unlawful, had no legal capacity to promote constitutional changes and thus entire BBI process was done unconstitutionally.

“The BBI bill cannot be subjected to a referendum before IEBC conducts voter registration. There is no quorum at IEBC to conduct its mandate including signature verification submitted by IEBC. At the time of launch of the report, there was no legislation to guide the conduct of the referendum,” the judges said,

“An injunction is hereby issued barring IEBC from undertaking any processes with regards to the amendment of the constitution,” they said.

They directed parties to bear their own costs.

The court found that in taking the initiative to amend the constitution, other than through the prescribed means, the President had, without doubt, failed to respect uphold and subscribe to the constitution, and to that extent he had fallen short of the leadership and integrity threshold.

 “BBI is a hybrid initiative unknown to the constitution, therefore it is our finding that the popular initiative as means to amend the constitution under article 257 of the constitution is a power reserved for Wanjiku. Neither the president nor any state organ can utilize article 257 of the constitution to amend the constitution,” the judges held.

The latest move deals ablow to the BBI bill which was headed for a referendum.

The push for constitutional review entered the homestretch on Tuesday after Senate overwhelmingly passed the Constitution of Kenya (Amendment) Bill, 2020 setting the stage for the last two steps.

The Senate essentially forwarded the Bill to voters to make the final decision at a referendum expected to be scheduled soon by the Independent Electoral and Boundaries Commission (IEBC).

The House attained a rare two-thirds majority after 51 senators voted in support of the Bill, 12 voted against while nominated Senator Mary Seneta abstained.

President Uhuru Kenyatta and ODM leader Raila Odinga’s allies united in passing the document amid rejection by allies of Deputy President William Ruto.

The bill has however faced tremendous challenges.

There have been at least seven cases challenging the BBI process in court.

In February, a court had blocked the Independent Elections and Boundaries Commission from subjecting the BBI Bill to a referendum.

It argued that the issue of whether the referendum will be held would be made after the hearing and determination of seven cases filed before the court.

“We believe that it is in the public interest that appropriate orders be granted. Consequently, we hereby order that a conservatory order be and is hereby issued restraining the IEBC from facilitating and subjecting the Constitution (Amendment) Bill 2020 to a referendum or taking any other action to advance the Constitution (Amendment) Bill 2020 pending the hearing and determinate of the consolidated petitions,” a three-judge bench ruled.

The judge,s in the more than five-hour ruling said Article 257 of the constitution required all questions submitted differently as referendum questions to the people.

According to the bench, binary choices fail to capture views of the electorate as some will be for or against.

Article 251 of the Constitution amendment act and 256/257 stipulates that each amendment be considered on its merit.

“The crafters of the Constitution were alive to the fact that a Bill may propose different views which might be accepted or rejected by the voter. In our scenario, binary choices are not permissible as they lead to confusion and deny the voter right of choice,” the judges said.

The bench declared as unlawful and unconstitutional for the BBI steering committee to direct IEBC on its functions, set criteria for the process, and impose timelines on the process while ignoring the fundamental principle of public participation.

“IEBC is an independent commission and cannot be subjected to any influence by any authority. The procedure therefore used in the addition of the 70 extra constituencies is an attempt to amend the constitution by stealth,” the judges said.

They held that implications of such a move if allowed create, loopholes for people to sneak in other amendments for political convenience.

The judges held that IEBC was not properly constituted to carry out its mandate as it needed at least five commissioners to have a quorum.

“A referendum cannot be determined by an organ that is not properly constituted. We conclude that IEBC did not have the quorum at a time it made and therefore all decisions made were invalid, null and void,” the judges pronounced themselves.