Blow to BBI as High Court declares Constitution Amendment Bill 2020 illegal

Written By: Eric Biegon

President Uhuru Kenyatta (Right) & Opposition Chief Raila Odinga display BBI Reports in Kisii County in October 2020. PHOTO / PSCU

The Building Bridges Initiative suffered a major setback Thursday after the High Court declared the Constitution of Kenya Amendment Bill 2020 null and void.

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In a ruling delivered by a five-judge bench, the court in Milimani noted that the entire process was unconstitutional as its promoters usurped the powers of the common citizen.

In their determination, judges Jairus Ngaah, George Odunga, Teresia Matheka Joel Ngugi, and Chacha Mwita further ruled that “The president overstretched his powers when he proposed amendments to the constitution outside his clear mandate.”

While ruling in favor of eight petitioners who consolidated their case against the BBI process, the five judges determined that the President appointed committee (BBI Steering Committee), which was established via gazette notice, rendering the whole process state-sponsored.

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Read here the —>  BBI Consolidated Judgment

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The BBI secretariat and steering committee according to the judges was, therefore, an unconstitutional outfit/s.

On whether it is lawful for the BBI Bill to set out the number of constituencies, the judges ruled that number of constituencies can be amended as long as the procedure is followed. On this matter, they determined that the creation of new 70 plus constituencies is unlawful.

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They said the BBI Bill appears to direct the Independent Electoral and Boundaries Commission  (IEBC) on its constitutional mandate and ignores key due process in the delimitation of boundaries, particularly public participation.

“Allocation of the 70 constituencies by county ignores the set criteria that the constitution itself dictates.” The judgment read by Judge Joel Ngugi stated

On the question of whether the electoral agency was properly constituted in confirming the authenticity of referendum signatures, they ruled that the IEBC did not have the quorum & thus the commission’s decision was invalid, null & void.

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“The present amendment wrongfully purports to suspend the constitutional timelines of reviewing boundaries. It permits IEBC to begin and complete delimitation outside the timeline. They are plainly unconstitutional,” The five judges ruled

Thursday’s decision by the High Court comes barely days after members of Parliament, both Senate and the National Assembly, overwhelmingly adopted the Constitutional Amendment Bill 2020, paving way for a referendum.

It is expected that the promoters of the BBI Bill will appeal the ruling. Already the Attorney General Kihara Kariuki has asked for certified copies of the judgment so as to file a notice of appeal.

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