A special five-judge bench at the High Court of Kenya on Thursday declared the Building Bridges Initiative (BBI)-driven Constitution of Kenya Amendment Bill 2020 unconstitutional.
The main case was filed by five activists, namely David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo, and Ikal Angelei. The judgment deals with 17 issues that had been raised in eight petitions consolidated with the main case. The more contentious issues in the bill were whether the BBI satisfied the constitutional interpretation of a popular initiative, whether the referendum should have one question or multiple questions, and whether the bill, if passed, could create more constituencies.
The bench, led by Professor Joel Ngugi, stated that an amendment to the Constitution of Kenya could only be initiated by a parliamentary or popular initiative. According to the bench, initiation by a popular initiative meant that the amendment had to emerge from the common man, following the doctrine of basic structure, and not the president. The president did not have the power to institute constitutional amendment under written law as he had done in this case by appointing the BBI Steering Committee. The court ruled that the committee was an illegal entity not recognized by law.
The court further determined that, where there were proposed amendments to different articles of the constitution, the referendum should have multiple questions to prevent the mischief of disguising unpopular amendments among the popular amendments of the constitution.
The court also found that the Independent Electoral and Boundaries Commission (IEBC) was the one tasked with the role of determining boundaries and that the BBI proposal for the creation of 70 new constituencies was against the law. Furthermore, IEBC was determined to have lacked quorum to conduct business of a policy nature.
A permanent injunction restraining IEBC from conducting the referendum was issued by the court. It warned that the president could be sued in his personal capacity.
The BBI emanated from the agreement between President Uhuru Kenyatta and Opposition leader Raila Odinga, famously known as “the handshake,” which came after an intensely contested presidential election in 2017. The judgment comes after the National Assembly and the Senate passed the bill earlier this month.
The BBI secretariat has expressed its disagreement with the judgment and would appeal it.