BBI ruling against citizens’ wishes, say Ward leaders

Monday, May 17th, 2021 00:00 |
The chair of the MCAs caucus Victor Mutuma addresses a press conference at a Nairobi hotel, yesterday. Photo/PD/Kenna Claude

Members of County Assemblies (MCAs) have condemned the High Court ruling on the Building Bridges Initiative, terming it political.

The County Assemblies Leadership Caucus accused the judges of overturning a decision “made by millions of Kenyans and supported by 43 County assemblies and the two Houses of Parliament”.

In a statement read by the Meru County Assembly Majority Leader Victor Mutuma, the caucus said the five-judge bench had disregarded the wishes of Kenyans.

“The judgment does not acknowledge that a Constitution is a living document that must be responsive to the needs and desires of a society at any given time.

It presupposes that Kenyans are prisoners of the 2010 Constitution and the 2010 Constitution was made for a tiny minority of Kenyans and in this case the Judiciary and civil society groups not the larger majority of Kenyans,” the MCAs said.

They added: “By holding that some sections of the Constitution cannot be amended whether by popular or parliamentary initiative or what they generally term as “eternity clauses”, the judges boldly and without any solid analysis took away the sovereign powers of the people enshrined in Article 1 (1).”

The caucus said the bench ignored a ruling that affirmed that the appointment of the Building Bridges taskforce by President Uhuru Kenyatta was constitutional and that the Independent Electoral and Boundaries Commission (IEBC) is properly constituted.

Public participation

“We find it strange that the bench found that on one hand IEBC can transact business but on the other hand it cannot because of a statute that provides a quorum of five members.

Clearly, the bench elevated a statute over the Constitution,” they observed.

The  Ward Reps said the bill underwent a comprehensive public participation process that saw Kenyans express their views.

“The BBI reports and the constitutional amendment bill have almost certainly been subjected to the most thorough and legally compliant public participation programme ever carried out under the Constitution of Kenya,” he said.

The caucus said that if the judgment is adopted by the Court of Appeal, it will set a trend whereby Kenyans cannot amend the Constitution to address social and economic issues but will instead “resort to anarchy and violence.”

 “In the event, the Court of Appeal and the Supreme Court adopts this judgment, Kenyans will suffer from the perspectives of the devolved systems of government,” Mutuma said, adding that the 1,450 wards will miss out on the proposed Ward Development Fund.

The ruling by judge Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka, and Chacha Mwita, said the President had violated the Constitution when he initiated the BBI process which it said could only be done by Parliament or the citizens.

In their ruling, the judges also said anyone can institute legal proceedings against the President for violating the Constitution when he initiated the process of amending the Constitution.

“President Uhuru Kenyatta violated Article 131(2) (c) of the Constitution of Kenya. He has failed to respect, uphold and safeguard the Constitution. He has failed the leadership and integrity test under Article 73 (1) (a). The entire BBI Bill is an invalid and void exercise,” the court ruled.

They also accused the BBI promoters of failing to distribute adequate copies of the BBI bill to the public.

They emphasised that voters must be supplied with adequate copies of BBI documents for proper public participation.

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