High Court declares BBI process unconstitutional

By Neema Oloo


Judges Teresia Matheka, George Odunga, Joel Ngugi, Jairus Ngaah and Chacha Mwita at a court in Milimani, delivering the judgment on petitions challenging the BBI – Photo/ The Standard

The High Court on Thursday declared the BBI referendum process unconstitutional, throwing the future of the initiative into uncertainty.

The five judges; Joel Ngugi, George Odunga, Jarius Ngaah, Teresia Matheka and Chacha Mwita, unanimously dismissed the actions of the key players of the BBI.

The judges upheld a consolidated case by eight petitioners that the constitution bears essential features that cannot be amended. The petitioners argued that the BBI was not the will of the 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 procedure to amend the constitution through a popular initiative.

The court also said that the president cannot initiate a process to change the constitution in the pretext of promoting national unity. If allowed, it would mean he would be granted the role of promoter and referee.

“He (president) isn’t part of parliament. He has no power under the constitution to initiate changes under the constitution since parliament is the only state organ that can consider the effecting of constitutional changes,” said the judges.

The court further observed that the BBI steering committee was unlawful and had no legal capacity to promote constitutional changes therefore, the entire process was done unconstitutionally. They said that the president did not comply with the law when creating the committee.

The court also added that the Bill was not printed in Swahili for the common mwananchi to read, which means those who do not understand English were left out.

“The BBI bill cannot be subjected to a referendum before the 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,” said the judges.

The court also found that in taking the initiative to amend the constitution, the President had failed to respect, uphold and subscribe to the constitution and to the extent that 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 said.

The judgement from the court arose out of seven cases filed against BBI.

The main case was filed by five activists namely, economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.

They sued Attorney General Kihara Kariuku, National Assembly Speaker Justin Muturi and Speaker of the Senate Ken Lusaka, as well as the IEBC.

The push for the BBI referendum entered the homestretch on Tuesday after Senate overwhelmingly passed the Bill, setting the stage for the last two steps.

The House attained a rare two-thirds majority after 51 senators voted in support of the Bill, 12 against and 1 abstained.

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