Blow to Uhuru as Kenyan court trashes BBI

A Kenyan appellate court has quashed an appeal launched by allies of President Uhuru Kenyatta and Opposition chief Raila Odinga to overturn a May 14, 2021, verdict by the high court that nullified a constitutional amendment bill.

The seven-judge bench reaffirmed the decision of the Kenyan high court which ruled that the Constitutional Amendment, 2020—famously known as the Building Bridges Initiative (BBI)—was illegal.

In May, the five-judge bench argued President Kenyatta had violated the constitution by initiating a constitutional change contrary to what the Kenyan law says that the process can only be initiated by an ordinary citizen.

Also, the judges ruled that the BBI constitutional committee which was formulated by President Kenyatta lacked legality, hence, president Kenyatta failed the integrity test. The Kenyan constitution requires that one million signatures must be collected for the bill to head to the referendum. And after the Kenyan electoral body, the Independent Electoral Boundaries Commission (IEBC) did so; the judges ruled that the process was flawed and lacked the merit of law.

“A popular initiative to amend the constitution can only be started by the people, not by the government,” the judges said.

Court of appeal

The proponents of the law changed streamed to the court of appeal prompting a hearing for determination of the high court ruling. While affirming the court’s decision, various appellate judges submitted their rulings, poking holes in the initiative.

Judge Fatuma Sichale argued that the Kenyan president was never accorded a hearing by the high court but further argued the IEBC had no mandate to institute the increase of the number of constituencies as had been proposed in the bill.

Francis Tuiyott argued the polling body IEBC was improperly constituted to handle the matters of the constitutional amendment bill.

As for Gatembu Kairu, President Kenyatta does not fall under the ordinary category of ordinary people to enjoy the privilege of coming up with a popular initiative such as law change.

Mr Kairu further said that Kenya’s Attorney-General Paul Kihara could not represent President Kenyatta in a personal capacity because the Kenyan head of state was treated as a personal entity liable to be sued. Hence, he should have been served the petition personally.

‘‘I am of the view that people can make a new Constitution, but the legal process of changing the Constitution must be followed. The process includes civic education, public participation, constituent Assembly debate, consultation and public discourse and Referendum. Parliament has no power to amend or change the basic structure of the Constitution,’’ ruled judge Hannah Okwengu.

The process of constitutional change came into existence after President Kenyatta and Mr Odinga embraced peace in 2018 after a contested polarising election in 2017.

Some of the proposals in the bill include the inclusion of positions of a prime minister and two deputies, a re-introduction of the seat of the leader of the official opposition, increasing the number of MPs among several economic reforms.

The Kenyan government used over $10 million in the process of marshalling the support for the initiative.

Speaking after the court verdict, Mr Odinga said in a statement: ‘‘This is not an indication of our regard to this noble initiative. Far from that, we feel that we must now see the forest for the trees and pursue the bigger goal of setting the rest of the issues facing the country right. The Building Bridges Initiative was never a destination but a journey in an ever-evolving way of life.’’