RECAP: Why BBI fell at the High Court

Friday, August 20th, 2021 15:59 |
Court of appeal judges from left: Fatuma Sichale, Patrick Kiage, Roseline Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembu and Francis Tuiyot during the BBI hearing. Photo/PD/Gerald Ithana

The High Court on May 13, blocked the government-backed BBI referendum to make fundamental changes to the Constitution, among them the expansion of the Executive to create the position of Prime Minister with two deputies.

Justices  Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka declared the BBI process as irregular, illegal and unconstitutional.

In their ruling, they declared that the President cannot initiate amendments through a popular initiative, maintaining that the route was reserved for Wanjiku.

“A declaration is hereby made that the President does not have authority under the constitution to initiate changes to the constitution, and that a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under article 256 or through a popular initiative,” ruled the five-judge Bench.

The judges also ruled that the BBI taskforce, a body created by the President, was illegal, adding that Uhuru had failed the leadership test.

The court also ruled that the Independent Electoral and Boundaries Commission (IEBC) had no quorum to carry out the referendum process.

BBI had proposed the creation of a Prime Minister post, at least 70 new constituencies and an affirmative action clause that could create up to 300 new unelected Members of Parliament.

Uhuru and Raila unveiled the initiative after a truce following the disputed 2017 presidential elections that nearly pushed the country to the edge.

Court of Appeal President Daniel Musinga, Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuiyot are currently making their submissions that are expected to be a game-changer in the country’s political landscape.

The BBI contains a nine-point agenda of issues singled out by Uhuru and Raila,  to address some of what they described as the country’s most pressing issues.

But some critics led by the Deputy President William Ruto say it is a selfish initiative to reward certain politicians.

The two houses of Parliament and county assemblies had passed the Constitutional Amendment Bill 2020 that contained the BBI proposals before they were stopped by the High Court.

It was awaiting presidential assent, after which Kenyans would have headed to a referendum, before next year’s elections.

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