BBI Bill: 17 grey areas isolated by judges for interpretation


On May 17th 2021 the High Court in Nairobi overturned a three-year quest to amend Kenya’s Constitution.

In the ruling a five-judge bench comprising Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita noted that the Head of State lacks authority to initiate constitutional amendment through popular initiative.

Noting that any proceedings to amend the constitution ought to be started either by Parliament or through a popular initiative.

The judges isolated 17 grey areas in the Building Bridges Initiative (BBI) that needed interpretation.

  1. What should constitute the basic structure of a constitution amendment?
  2. If the basic structure is established, what is its implication to the BBI process?
  3. What are the constitutional limits for the amendment of the constitution through a popular initiative? Who can initiate a popular constitutional amendment? Is the BBI in conformity with the constitution?
  4. Should the president be directed to refund money used in the BBI process?
  5. Was the president in violation of the constitution by commencing the BBI process?
  6. Is there adequate legal backing to initiate popular initiative?
  7. Is it permissible for county assemblies or Parliament to alter the existing bill sent to them?
  8. Does the constitution envisage an omnibus bill or specific questions to be subjected to a referendum?
  9. Was it unlawful for the Constitutional amendment bill to leave an independent health commission in the bill?
  10. Is it lawful to set a specific number of constituencies as proposed in the BBI?
  11. Is it lawful to directly allocate the proposed constituencies to specific regions?
  12. Has the IEBC carried out national voter registration and can there be a referendum without this?
  13. Is IEBC properly constituted and did they carry out proper signature verification exercise?
  14. Is a legal framework in place to regulate the process of a referendum?
  15. Was it a violation of the constitution to promote the BBI in the midst of the Covid-19 pandemic?
  16. Should the president dissolve parliament?
  17. What reliefs should the court give?

In a 785-paragraph judgment, the bench tore through the BBI initiative directly questioning the President on the same; ’… the President failed to respect, uphold and safeguard the constitution and, to that extent, he has fallen short of the leadership and integrity threshold.’

The petitioners in their cases had sought to stop BBI, claiming that the country was steering into uncharted waters, driven by few political bigwigs instead of a wave of change by Kenyans.

Economist Dr David Ndii, and other petitioners through lawyer Nelson Havi wanted to stop the process completely, quoting sections of the law that were at the core of the initiative.

They declared that Four Chapters of the 2010 Constitution that form the foundation of the country cannot be altered or changed through amendments.

The victory would however be short-lived as President Uhuru Kenyatta, ODM leader Raila Odinga, the BBI National Secretariat and the Independent Electoral and Boundaries Commission (IEBC) would promptly file separate petitions challenging the High Court ruling that declared the BBI as unconstitutional.

A seven-judge bench constituted by the President of the Court of Appeal Justice Daniel Musinga would later begin hearing the appeal case which consolidated the appeal petitions.

The seven judges picked to hear the case include Presiding Judge Daniel Musinga, Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

Now the country eagerly awaits the Court of Appeal ruling on Friday that will determine whether the BBI constitutional amendment will go on or the journey will proceed to the Supreme Court.



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