The 17 issues at the heart of landmark ruling on BBI

Justices Teresia Matheka, George Odunga, Joel Ngugi, Jairus Ngaah and Chacha Mwita at a Court in Milimani on Thursday, May 13, 2021, delivering the judgement on eight consolidated petitions challenging the BBI referendum. [Collins Kweyu, Standard]

Seventeen issues were at the heart of the landmark judgment by a five-judge bench on the Building Bridges Initiative (BBI).

High Court judges Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka listed the issues to determine the eight consolidated petitions that challenged the BBI process, top being whether President Uhuru Kenyatta could initiate a popular initiative as the head of State.

In the 500-page judgment, the judges analysed whether the BBI as drafted and presented to County Assemblies and Parliament was in conformity with the Constitution and whether it amounted to a popular initiative that should be subjected to a referendum.

“We settled on the 17 issues as they form the centre of dispute surrounding the BBI initiative and forms the background of the final reliefs issued by the court,” said Ngugi.

The judges set out by analysing the basic structure of a constitutional amendment initiative and the implications it has on the BBI.

They also dwelt on the question of the president being involved in the process through the use of public resources to promote the BBI and whether President Kenyatta while entering into the handshake deal with former Prime Minister Raila Odinga to commence the process followed the Constitution.

“The question was whether the president should be ordered to refund public funds used in promoting the BBI and whether there are adequate laws in place to guide the referendum process,” said justice Ngugi.

According to the judges, the President is not a Member of Parliament and therefore cannot purport to initiate a Constitution amendment but that he can use the Attorney General to initiate a Constitution amendment.  

They ruled that neither the president nor a State organ is allowed to initiate a constitutional amendment through a popular initiative.

The judges also determined the controversial question of whether the National Assembly and the Senate could make changes to the BBI Bill as presented from the County Assemblies and whether the Bill could have multiple-choice questions during the referendum.

They also considered the controversy surrounding the creation of 70 new constituencies and distribute them to counties without involving the Independent Electoral and Boundaries Commission.

On the involvement of the electoral commission, the judges analysed whether IEBC is properly constituted to carry out its function and whether they have done voter registration as envisioned in the Constitution before a referendum.

“The core issue for our consideration was whether there is a legal framework in place to regulate the process of a referendum,” said the judges.

With the raging Covid-19 pandemic that has put the country on lock-down on several instances, the judges also singled out the question of whether the promoters of BBI violated the Constitution on the rights to health by going on with the BBI process in the midst of a health crisis.

Although there is a pending dispute in court on former Chief Justice David Maraga’s advisory to the president to dissolve Parliament, the judges also set out to answer the question of whether President Kenyatta should dissolve Parliament as a result of the BBI referendum.

Justice Jairus Ngaah during the delivery of Judgement by a five Judge Bench on the Constitutionalism of BBI and Petition seeking to stop IEBC from conduction referendum to implement BBI Bill. [Samson Wire, Standard]

Since the country’s health workers raised complaints of the failure to establish an independent national health commission in the BBI Bill, the judges also sought to answer the question of whether it was unlawful to discriminate against the health workers by failing to establish the commission.

The petitioners in their cases had sought to stop BBI, claiming that the country is steering into uncharted waters, driven by few political bigwigs instead of a wave of change by Kenyans which is similar to the quest to do away with the 1969 Constitution.

Economist Dr David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo, Ikal Angelei, wanted to stop the process completely, targeting sections of the law that are at the heart of the initiative.

The petitioners through lawyer Nelson Havi urged the court to stop the initiative by declaring four Chapters of the 2010 Constitution- Chapter one, two, four, nine, and 10 form the foundation of the country and cannot be altered or changed through amendments, either through Parliament or popular initiative.

Chapter one deals with the sovereignty of the people and the supremacy of the Constitution while Chapter two declares Kenya as a Republic, defines its territory, national values, language, culture and devolution.

At the same time, Chapter four accords to Kenyans rights, Chapter nine is about the Executive, and 10 defines the Judiciary.

The crux of their case is that subjecting changes to the four clauses will result in a complete change of the entire law.

Court documents read that the 2010 Constitution can only be altered through a referendum and not the BBI wave or Parliament.

“If certain fundamental Constitutional provisions, principles and values are amended or seriously altered, the life of the Constitution will come to an end. It is, therefore, trite to say there is implied limitation to what can qualify as a valid amendment to Kenyan Constitution,” the petition reads in part.

The petitioners argued that we already have a good law, dealing with all the problems cited in the BBI document. The only problem, they say, is failure to comply and implement it.

It is alleged that the intention of inscribing BBI recommendations into the Constitution will be through a Parliamentary route. By this, the draft bill will pass through Parliament, sidestepping the lengthy route of collecting and verifying one million signatures as well as the need to have the 47 county assemblies debate it, and at least 24 passed it to reach the next stage.

The court record reads that Kenya has structures for power-sharing between national and county governments, it has sections that deal with representation, has Chapter Six which deals with integrity and corruption, and independent commissions that deal with bills of rights among others.

“There is a difference between amendment of the Constitution and its replacement. However, the change should not be so radical so as to replace the constitutional model currently in force or lead to the replacement of a defining axis of the identity of the Constitution. It is correct that it is the prerogative of the people to change their Constitution or system of governance but this cannot be made through amendment procedure,” it continues.

The petitioners claimed the country is now steering into unchartered waters, driven by few political bigwigs instead of a wave of change by Kenyans which is similar to the quest to do away with the 1969 Constitution.

The 1969 law saw two fundamental changes - when then-President Jomo Kenyatta had Parliament passed an Act to allow him to pardon election offenders. This was to save Paul Ngei who had in 1974 had been black-listed by a court to vie for in a by-election.

The court found Ngei guilty of an electoral offence.

The second major change in the old constitution was the introduction of Section 2A in 1982. The amendment changed Kenya from de facto (by fact) one-party state into some de-jure (by law) one-party system.

The 1982 amendment was the turning point of Kenyan politics history after sparking the quest for multiparty democracy and which is outlined in Chapter 2(2) of the 2010 Constitution

The petitioners argued that if the 2010 law is changed, Kenya’s political future is uncertain.

“If the alter the four sections, we would be creating a new Kenyan Constitution with a new political order. From the ashes, a new political regime will emerge and which is not the original intention of the people.”

In the case where the Attorney General Kihara Kariuki, Independent Electoral and Boundaries Commission (IEBC) speakers of the two house of Parliament-National Assembly and Senate are listed as respondents, the petitioners sought to have the court declare Chapter one, two, four, nine and 10 cannot be amended either by Parliament or through the popular initiative.

At the same time, they wanted the court to declare that there are limitations, either implicit or implied when amending the Constitution under Articles 256 and 257.”

The petitioners however admit that there is no law that bars politicians to change the Constitution. They assert that the changes are limited to seal errors and gaps seen in it.

They argue:” In Kenyans Context there are no express provisions in the Constitution which limit the political actors from deploying Articles 256 or 257 of the Constitution to make any change in the Constitution, however, if such change or alteration would lead to the destruction or overthrow of the basic fundamentals of the Constitution, that change would best be defined as a Constitutional breakdown or revolution in the proper sense and not a valid amendment of the Kenyan Constitution.”

The petitioners claim the country is now steering into uncharted waters, driven by few political bigwigs instead of a wave of change by Kenyans which is similar to the quest to do away with the 1969 Constitution.

The cases before Milimani Court had 27 parties.

On the other hand, Attorney General Kihara Kariuki urged the court to allow the process to continue. According to him, the cases brought to court should be dismissed as the petitioners misunderstood what popular initiative is.

He explained that BBI process was consultative and reflects the will of Kenyans to have a better and peaceful country.

According to State lawyer Immanuel Mbita, the court had no powers to hear the case. He argued that Dr Ndii and his co-petitioners had framed their arguments as if seeking an advisory opinion, which can only be heard by the Supreme Court.

He argued that the case was challenging the will of the people to decide on what they want, hence should be thrown out.

“To the extent that the petition challenges the sovereignty of the people of Kenya, more particularly the legality of Articles One, Two, and Three of the Constitution, the petition is non-justiciable,” Mr Mbita argued.

He said that other progressive countries like the United States of America have amended their Constitution 27 times to entrench the bill of rights among others.

Issues the court is determining in petitions challenging the BBI Constitutional amendment

1.       What should constitute the basic structure of a constitution amendment

2.       If the basic structure is established, what is its implication to the BBI process

3.       What are the constitutional limits for the amendment of the constitution through a popular initiative? Who can initiate a popular constitutional amendment? Is the BBI in conformity with the constitution?

4.       Should the president be directed to refund money used in the BBI process?

5.       Was the president in violation of the constitution by commencing the BBI process?

6.       Is there adequate legal backing to initiate popular initiative?

7.       Is it permissible for county assemblies or Parliament to alter the existing bill sent to them?

8.       Does the constitution envisage an omnibus bill or specific questions to be subjected to a referendum?

9.       Was it unlawful for the Constitutional amendment bill to leave an independent health commission in the bill?

10.   Is it lawful to set a specific number of constituencies as proposed in the BBI?

11.   Is it lawful to directly allocate the proposed constituencies to specific regions?

12.   Has the IEBC carried out national voter registration and can there be a referendum without this?

13.   Is IEBC properly constituted and did they carry out proper signature verification exercise?

14.   Is a legal framework in place to regulate the process of a referendum?

15.   Was it a violation of the constitution to promote the BBI in the midst of the Covid-19 pandemic?

16.   Should the president dissolve parliament?

17.   What reliefs should the court give?