BBI reggae stopped

Five judge bench, right to left, Justice Chacha Mwita, Jairus Ngaa, Jael Ngugi, George Odunga and Teresia Matheka making a ruling at Milimani Law Courts on BBI Amendments Bill 2020 on May 13, 2021. [Samson Wire, Standard]

The Building Bridges Initiative (BBI) was yesterday dealt a major blow after a bench of five High Court judges stopped what would have been a fairy tale run for constitutional amendments.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka did not only stop the BBI reggae but also stopped the message, the rhythm, and declared that President Uhuru Kenyatta had contravened the Constitution in a move that could form the ground for his impeachment.

In a 500-page landmark judgment that took six hours to deliver, the judges hit out at the President and ODM leader Raila Odinga and declared that their BBI project that germinated from the March 2018 handshake was unconstitutional, illegal, null, and void.

“Any step that has been taken to amend the Constitution through the Building Bridges Initiative is null and void and cannot be subjected to any referendum. The court issues a permanent injunction stopping the electoral commission from proceeding to organise any referendum for the Bill,” ruled the judges.

The decision came as a bitter pill for Uhuru and Raila, having spent the last three years selling the BBI agenda and marshalling troops from the county assemblies, to Parliament, only to fall in the last hurdle when the legislative arms had passed the baton for the referendum.

Having listed 17 main issues for determination in the eight consolidated cases that challenged the BBI process, the judges gave 22 declarations that scuttled its entire process.

They began by declaring that Uhuru had no authority to initiate the constitutional amendment process and that the BBI steering committee chaired by late Garissa Senator Yusuf Haji, who died recently, was illegally appointed.

According to the five judges, the Constitution can only be amended through the Parliament initiative or popular initiative. They said the President could only use the Attorney General to initiate a Constitution amendment.

“The President cannot be both the player and the umpire in the same match. It follows that the task-force was his brainchild and it had no locus standi (power) to champion constitutional amendment which is reserved for ordinary citizens,” ruled the judges.

They ruled that the BBI task force which metamorphosed to the BBI steering committee was the president’s initiative and not the people and invalid from the beginning.

And in what may give room for Uhuru's impeachment, the judges ruled that he violated Chapter Six of the Constitution on leadership and integrity, and that he can be sued in his personal capacity while still in office if he violates the Constitution.

“We declare that Uhuru Muigai Kenyatta has contravened Chapter Six of the Constitution given that in initiating the process to amend the Constitution through the BBI, he failed to defend, respect, and uphold the constitution as required,” ruled the judges.

They ruled that although the president was mandated to enhance national unity, using the BBI as an avenue to bring unity through the handshake with Raila was stretching his powers beyond what is provided in law.

“The Constitution can only be amended as provided. The President fell short of the leadership and integrity test required of his office by breaching the Constitution through the BBI process. There are other ways he can use to achieve national unity,” ruled the judges.

On public participation, the judges ruled that there was inadequate public participation and sensitisation before the collection of signatures, and that the BBI steering committee did not even attempt to make copies of the draft Bill available to the people.

According to the judges, voters were entitled to a minimum copy of the BBI constitutional Bill in English, Kiswahili, or a language they understand before being asked to append their signatures, and that the IEBC approved the signatures without ensuring the public was enlightened.

“The right to make a political decision is beyond just taking signatures, it involves making information available for the public to make an informed decision. In absence of meaningful public participation, the exercise of collecting signatures was constitutionally flawed,” ruled the judges.

The judges said they could not make a determination on whether the funds should be recovered since there was no evidence submitted in the court of the amount allocated to the steering committee.

On the question of a referendum Bill, the judges ruled that no proper law had been enacted by Parliament to guide the process.

They, however, agreed that the County Assemblies, National Assembly, and the Senate had no powers to amend or alter the Referendum bill as presented by IEBC, since that would amount to usurping the will of the people who endorsed the document.

“Legislative assemblies must either swallow the Bill or spit it wholly. A popular initiative to change the Constitution is an ordinary initiative by the citizenry and cannot be subjected to changes by the law-making organs,” they ruled.

The judges also weighed in on the controversy that dodged the BBI process on whether it should have multiple choice questions and returned a verdict that a referendum must as a matter of right to the voters have multiple questions.

Justice Jairus Ngaa during the delivery of judgement [Samson Wire, Standard]

They reasoned that having one omnibus referendum Bill was limiting the citizens' rights to make informed decision since one would be forced to vote for an outcome he does not like by being subjected to only a yes or no question.

On the additional 70 constituencies, the judges said that Kenyans were not precise on how many constituencies they should have. The judges said that the section on areas of representation could be amended.

However, the judges said the distribution of the constituencies was unlawful, as the IEBC could not be directed to carry out its mandate. They also faulted the task-force for failing to seek the views of Kenyans before they delimited the constituencies.

“The impugned sections are unlawful and unconstitutional. They direct the IEBC on its constitutional functions, they ignore public participation, they take away the rights of individuals who are aggrieved with the decision of the IEBC to seek a judicial review,” they ruled.

The judge said the creation of the constituencies amounted to creating a loophole for the promoters to amend the Constitution without the blessing of the people.

The judges ruled that the basic structure doctrine was applicable in Kenya, protected certain sections of the Constitution from amendment through secondary power, and that the sections could only be amended through their primary power and not through the referendum.

Meanwhile, Attorney General Kihara Kairuki has vowed to challenge the verdict on the BBI in the Court of Appeal.

In his application seeking to have the five-judge bench suspend the implementation of its judgment to allow him to appeal, Justice Kihara said he was aggrieved with the court’s decision that the process was illegal, adding that public interest on the matter needed an interpretation by a higher court.

According to him, the Amendment Bill, which was challenged before Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Teresiah Matheka and Chacha Mwita, was validated by 3 million Kenyans, passed by more than 24 counties, and subsequently passed by National Assembly and the Senate.

“It is in the public interest that pending the filing of the Appeal and to enable him to exercise his right of appeal, an interim stay of execution of the judgment be hereby stayed. It is critical to take judicial notice of the fact that the BBI process has been undertaken extensively, over 3 million signatures have been collected, to the critical constitutional processes such as consideration of the Bill by the county assemblies have been undertaken, the Amendment Bill has been passed by the majority members of the National Assembly and the Senate,” argued Solicitor General Ken Ogeto.

“Second relates to that the judgment you have just rendered raises fundamental questions with far-reaching implications. The Hon AG is dissatisfied with the judgment in its entirety, and he has firm instructions to move to the court of Appeal to challenge this decision. The public interest is a serious consideration in considering a relief in a matter such as this. I urge your honor to grant a stay of your judgment.”