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17 reasons why judges stopped BBI from proceeding to referendum


High Court in Nairobi
President Uhuru Kenyatta and ODM leader Raila Odinga display copies of the BBI report after it was handed to them at the Kisii State Lodge on October 21, last year. Photo/PD/File
In summary

    • The judges considered whether the president could initiate a constitution amendment through a popular initiative.
    • They ruled that the president could only initiate constitution amendment through the Attorney General since he (the president) is not a member of Parliament.

The High Court in Nairobi declared the Constitution Amendment Bill (2020) unconstitutional sighting illegalities committed during drafting and formulation of the entire process which made the Building Bridges Initiative bill (BBI) null and avoid.

In a highly anticipated Thursday, May 13 ruling, the five-judge bench presided over by Justice Joel Ngugi and comprising of justices George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita ruled in favour of eight petitioners who sought to bar the bill from proceeding to a referendum.

While stating their case, the eight petitioners including economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma and Moraa Omoke argued that the BBI bill was not a popular initiative but an agenda based on changing political waves within the country.

In the 500 page judgement, the judges analyzed  whether due process was followed when the bill was being drafted, presented to the County Assemblies and eventually Parliament and whether it was a popular initiative that should proceed to a referendum. 

“We settled on the 17 issues as they form the centre of dispute surrounding the BBI initiative and forms the background of the final reliefs issued by the court,” judge Ngugi said. 

The judges detailed the constitutional amendment process dwelling on the question whether the president initiating the process was constitutional and whether due process was followed since public funds were used to promote the BBI bill.

“The question was whether the president should be ordered to refund public funds used in promoting the BBI and whether there are adequate laws in place to guide the referendum process,” justice Ngugi said. 

The judges ruled that since the president is not a Member of Parliament he/she cannot initiate a constitutional amendment unless with the help/direction of the Attorney General. 

They further revealed that neither the president nor a state organ can initiate a constitutional amendment through a popular initiative. 

Also considered was the controversial question of whether the National Assembly and Senate could amend the BBI bill as presented to them from the County Assemblies. 

The judges also considered whether the bill could have multiple questions during a referendum. 

On the creation of 70 new constituencies and distributing them across the 47 counties, the High Court ruled that the Independent Electoral and Boundaries Commission was not involved adding that IEBC was not properly constituted to carry out it’s mandate.

The judges also considered whether voter registration was carried out as required by law before a referendum. 

While stating their case, the eight petitioners including economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma and Moraa Omoke argued that the BBI bill was not a popular initiative but an agenda based on changing political waves within the country.

“BBI is a hybrid initiative unknown to the constitution, therefore it is our finding that the popular initiative as means to amend the constitution under article 257 of the constitution is a power reserved for Wanjiku. Neither the president nor any state organ can utilize article 257 of the constitution to amend the constitution,” the judges said.

Issues the court considered in determining the petitions challenging BBI

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





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