D-day as Supreme Court delivers BBI verdict

Today the highest court pronounces itself on a matter that will either revive or bury the BBI initiative.

Below we trace the BBI journey, its ups and downs

The BBI was conceived as a political truce between President Uhuru Kenyatta and ODM leader Raila Odinga through the March 2018 handshake before it turned into a tedious, divisive amendment process.

Throughout the journey, President Uhuru, Raila and their allies have argued that the amendment process aims to unite Kenyans and redistribute leadership positions and resources equally and equitably across the country.

In contrast, the BBI brought sharp division between Uhuru and his Deputy William Ruto who remains a top critic of the initiative.

After the handshake, Uhuru and Raila at the steps of Harambee House while announcing their new aspirations for the country identified what they termed as the nine-point agenda highlighting some of the issues they said were ailing the country.

They formulated a task force that by November 2019, came up with an interim report detailing recommendations that they identified as the issues Kenya needed to address and which they said would require a constitutional amendment.

In January 2020, president Uhuru gazette the Steering Committee on the Implementation of the Building Bridges to a United Kenya Task Force, comprising 14 members and a secretariat drawn from representatives of both Uhuru and Raila.

The committee was directed to submit its comprehensive review of BBI by June 30, 2020.

The proponents of the BBI embarked on a popularisation tour all over the republic amid court petitions seeking to stop the President from extending the mandate of the 14-member team.

During the popularisation tours, several issues arose, including constitutional changes, the need to have a united country and the creation of the position of a prime minister. While the issues raised included legal, policy and administrative, it is the legal reforms that became the most contentious.

In November 2020, the Constitution of Kenya (Amendment) Bill, 2020 was introduced in parliament.

There was some controversy on how exactly the Report of the BBI Steering Committee, after it was handed over to the President, became the Constitution of Kenya Amendment Bill, 2020.

Nonetheless, the BBI Secretariat submitted the signatures to the Independent Electotral and Boundaries Commission (IEBC), for verification and submission to the County Assemblies and Parliament for approval.

On October 26, 2021, political leaders and members of the public from across the country gathered at Bomas of Kenya in Nairobi for the official unveiling of the Building Bridges Initiative (BBI) report.

COURT PETITIONS

On 16 September 2020, economist Dr David Ndii together with Jerotich Seii, James Ngondi, Wanjiru Gikonyo and Ikal Angelei moved to the High Court seeking a determination of three key issues among them whether the basic structure of the constitution can be amended.

 On 21 January 2021, the Kenya National Commission on Human Rights and four law professors were enjoined as amici curiae in the petition.

In February 2021, the High Court issued conservatory orders to the IEBC from facilitating a referendum.

The Consolidated Petitions proceeded for hearing from 17 March 2021 to 19 March 2021 via video conference.

REGGAE STOPPED

On May 13, 2021, the High Court 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,

APPEAL

On May 16, 2021, the office of the Attorney General filed an appeal against the decision by a five-judge bench that ruled against the Initiative.

The bench had ruled that the BBI process was unconstitutional, null and void.

Solicitor General Kennedy Ogeto said that the office was dissatisfied with the court’s judgement and that it would appeal the court’s decision.

The Attorney General filed a separate application before the Court of Appeal to suspend the High Court’s verdict on BBI.

He sought to have the ruling suspended until the hearing and determination of the appeal.

The five judges on the bench were Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka pronounced 17 issues on the BBI ruling.

APPEAL THROWN OUT

On August 20, 2021, the Court of Appeal ruled upheld the decision of the High Court and threw out the appeal.

The court ruled that President Uhuru Kenyatta’s attempt to change the constitution through the BBI process was unconstitutional.

A majority of the judges ruled that Kenyatta is not legally allowed to initiate changes to the Constitution through the popular initiative, an avenue reserved for the common mwananchi.

Justices Roselyn Nambuye and Hannah Okwengu observed that delimitation functions belong to the IEBC, and the agency should, therefore, be actively involved in the process. The BBI proponents did not consult the IEBC while suggesting an increase to the number of constituencies from 290 to 360, the jurists said.

A majority of the judges further ruled that the Constitution of Kenya has a basic structure, which should be protected, and that proposals to change the structure must attract overwhelming support by the citizens.

The support, the judges observed, can take the form of a successful Referendum, but before the Referendum is held, adequate public participation must be conducted.

Musinga further ruled that the BBI Steering Committee had no Constitutional mandate to initiate changes through the popular initiative route.

The Court of Appeal President also ruled that adequate public participation was not conducted in the lead-up to the would-be Referendum.

“Although more than a million voters signed in support of the amendment Bill, it was not demonstrated that the exercise was conducted transparently,” he said.

SECOND APPEAL

On October 2, 2021, Attorney General Kihara Kariuki filed another appeal at the Supreme Court set the stage for another bruising court battle.

In his five-point grounds of appeal filed through Solicitor-General Kennedy Ogeto, the AG wanted the apex court to overturn the Court of Appeal decision and to declare that the Constitution of Kenya (Amendment) Bill 2020 complied with all requirements to warrant a referendum.

This push at the Supreme Court was perceived as the final bullet to save BBI.

Should the seven judges dismiss the application, it will be the end of the road for the pet project borne out of the March 2018 handshake between President Uhuru Kenyatta and former Prime Minister Raila Odinga.

If they rule in favour of the initiative, it portends a great change in Kenya’s political system should the Uhuru-Raila camp win the election.