NAIROBI, Kenya — The High Court led by a five-judge bench has annulled the BBI (Building Bridges Initiative) referendum process to change the constitution.
The judges comprising Justices Joel Ngugi, Jairas Ngaah, Teresia Matheka, George Odunga and Chacha Mwita declared the entire process unconstitutional, null and void adding that the President has no powers to amend the constitution.
The court ruled that the BBI steering committee is an unconstitutional body terming it as the presidential taskforce and not the people’s initiative.
The ruling holds that the BBI steering committee did not provide critical information to the public, contrary to the amendment procedures which require a popular initiative.
“The constitutional amendment Bill is an initiative of the president and the law is clear that the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative.”
“The President cannot purport to directly initiate a constitutional amendment. He 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. The president is not permitted to amend the constitution using a popular initiative.” read part of the judges’ ruling.
The court also ruled that the president violated the constitution of Kenya by failing to respect, uphold and safeguard it as stipulated in Article 131(2) (c) of the constitution.
“He has failed the leadership and integrity test under Article 73 (1) (a). The entire BBI Bill is an invalid and void exercise,” said the judges.
The judges also said that a civil court proceeding can be instituted against the president in respect of anything done contrary to the constitution.
The judges also said that the president cannot initiate changes to the constitution in the name of promoting unity.
IEBC Faulted and barred from conducting BBI process.
The judges have also faulted IEBC questioning the decisions it made with regards to BBI and the verification of signatures.
“All the decision IEBC made regarding the constitutional amendment Bill is illegal because it lacks the quorum required,” the judges ruled, “At the time the BBI report was launched, there was no legislation in place to guide the referendum process.” They said.
They said IEBC should apply the same seriousness in the authentication and verification of BBI signatures, just as it does in the voter verification.
They said IEBC is not properly constituted since it does not have a requisite quorum and therefore it cannot oversee a referendum or any other process in respect of the BBI bill.
“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 ruled adding that political parties should bear their own costs.
With regards to the 70 additional constituencies BBI seeks to create, the court noted that IEBC is an independent body and it should not be mandated to create the constituencies.
It also ruled that the creation of extra constituencies is unlawful because the amendment bill directs IEBC on its constitutional mandate and ignores key due processes in delimitation of boundaries.
“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.” Said the judges in their ruling.
The ruling by the five-judge bench comes as a setback for the proponents of the BBI Bill led by President Uhuru Kenyatta and ODM Leader Raila Odinga.
On Tuesday, the senate overwhelmingly passed the BBI amendment bill just days after members of parliament did the same thus setting the stage for a referendum which was to be held in the course of the year.
Eight petitioners presented their petition to court arguing that the constitution bears essential features that cannot be amended adding that the bill is not the will of the people.
Solicitor general Ken Ogeto said he will appeal the ruling.