Kenya High Court declares BBI Bill unconstitutional

Kenya’s High Court on Thursday night declared the Building Bridges Initiative (BBI) driven Constitution of Kenya Amendment Bill 2020 as unconstitutional.

The case arose from eight petitions which had been lodged at the High Court raising 17 issues.

Some of the pleadings of the petitioners included whether BBI satisfied the constitutional interpretation of a popular initiative, whether the referendum will have one question or multiple questions, and also who has the mandate of creating constituencies among others.

The five-judge bench of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said an amendment can either be initiated by a Parliamentary or popular initiative, not the President.

The judges cited kenya’s president for again failing to actualise the constitutional requirement on public participation accusing him of coming short of violating a law he vowed to defend when he took his oath of office as the fourth President of the Republic of Kenya.

The court also found that the Independent Electoral and Boundaries Commission (IEBC) had the sole role of determining boundaries and that the BBI proposal for the creation of 70 new constituencies was against the law and went against the principle of public participation.

The court hence barred the IEBC from going ahead with holding a referendum on the BBI Bill.

“It is our finding that popular initiative is power reserved for Wanjiku neither the president or any other state organ can utilise Article 257 to amend the Constitution,” ruled the judges..

“Kenyans intended that the essence of constitutional order they were bequeathing themselves in 2010 would only be changed in exercise of primary constituent power that is through civic education, public participation, constitutional assembly plus a referendum and not through secondary constituent power which is through public participation and referendum only.”