Dilemma as High Court shoots down BBI referendum
The High Court in Nairobi has 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 May 13 ruling, the five-judge bench presided over by Justice Joel Ngugi and comprising of 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.
"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.
The court argued that the BBI steering committee was unlawful and had no legal capacity to initiate any constitutional changes.
The five-judge bench also ruled that the president had no authority to initiate any constitutional changes based on the Doctrine of Basic Structures which limit the powers to do so.
"The BBI bill cannot be subjected to a referendum before IEBC conducts voter registration. There is no quorum at IEBC to conduct its mandate including signature verification submitted by IEBC. At the time of launch of the report, there was no legislation to guide the conduct of the referendum,” the judges ruled.
The judges then issued an injunction barring IEBC from undertaking any process aimed at changing the constitution.
Thursdays ruling by the High Court comes a week after the Senate approved the BBI bill setting it ready for a referendum days after the National Assembly gave the bill a greenlight on May 6.
In February the High Court had issued a temporary conservatory order restraining the Independent Electoral and Boundaries Commission (IEBC) from subjecting the Constitutional Amendment Bill 2020 to a referendum.