On Thursday, the Building Bridges Initiative (BBI)-driven Kenya constitution Bill 2020 was ruled unconstitutional by one special five-Judge bench at the High Court in Kenya. Five activists, namely David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo, and Ikal Angelei, filed the principal case.
The judgement covers 17 issues raised in a series of eight petitions in the main case. The most controversial issues in the bill were whether the BBI was satisfied with an initiative’s constitutional interpretation, whether the referendum had to have one question or several issues, and whether the bill could create more constituencies if it had been adopted.
Professor Joel Ngugi’s bench stated that only a legislative or popular initiative can launch an amendment to Kenya’s constitution. Initiation by popular initiative meant, according to the bench, that the amendment had to come from the man and the chairman according to the doctrine of fundamental structure.
The president had no power in this case by appointing the BBI Steering Committee to institute a constitutional amendment under written law.
The court decided that the committee was a lawless entity. In addition, the court decided that if the various articles of the constitution have been amended, the referendum should have several issues to prevent the mischief of covering up unpopular amendments among popular constitutional amendments.
The court found also that the IEBC was the sole task of establishing the boundaries, and that the BBI proposal to create 70 new constituencies contravened the law.
In addition, the quorum for conducting businesses of a political character was determined by IEBC.The BBI was a result of an agreement, which came in 2017 after intensely contested presidential elections between President Uhuru Kenjatta and the Opposition leader Raila Odinga, known as the ‘handshake.’
The judgement follows the passing of the bill by the Senate at the beginning of this months. he BBI secretariat has expressed its disagreement with the judgment and would appeal it.