Court of Appeal upholds High Court decision, shoots down BBI referendum

Friday, August 20th, 2021 19:37 | By
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 Court of Appeal has upheld the High Court judgment that nullified the Building Bridges Initiative (BBI) Referendum Bill process.

In their judgement, the 7-judge bench agreed that the BBI process was a presidential initiative and not a popular initiative as submitted to the court by the defence team.

The seven judges were: Court of Appeal President Daniel Musinga, Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye and Francis Tuiyo

The judges, who were responding to 21 points raised by the High Court when it nullified the process on May 13, also took issue with the manner in which County Assemblies passed the Bill.

The judges insisted that before a constitution is changed, four processes must be followed namely civic education, public participation, county assemblies debate and referendum.

In his judgement, Court of Appeal Judge Patrick Kiage took issue with the manner in which Building Bridges Initiative (BBI) Referendum Bill was initiated.

He said everything to do with the Bill was presidential including Gazettement of BBI taskforce members.

"The popular initiative route is not available for the President. It is a preserve of the members of the public and it is out of bounds for the President," the judge said.

He said although the initiative became popular among Kenyans, it was not a popular initiative.

The judge also weighed into the manner in which county assemblies passed the Bill saying public participation was not done.

"The Bill was rushed through county assemblies at a lightning speed. Some counties did not even pretend to subject the Bill to public participation and some passed it to show party loyalty," he said.

Justice Kiage also said Members of County Assembly (MCAs) were coaxed with car grants that were released within a record.

"County assemblies rushed the process because of incentives such as car grants as if they wanted to show gratitude," the learned judge said.

On his part, Court of Appeal Justice Kairu Gatembu agreed with the May 14 decision by the High Court that President Kenyatta can be sued in his official capacity.

While delivering his rulling on Friday, August 20, Gatembu together with Justice Fatuma Sichale shared the same argument and rulling that President Uhuru Kenyatta can be sued in his official capacity.

"The High Court record continued to show that there was no appearance for the first respondent, the president. The President was served via email on 21st December. The president can be sued in his personal capacity during his tenure," Gatembu ruled.

Responding to the ruling, ODM leader Raila Odinga issued a statement saying, "It is likely that today's Court of Appeal ruling is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today."

Odinga further urged the Building Bridges Initiative (BBI) supporters to move on as they await the next decisions on how to proceed from the decision delivered by the Court of Appeal.

‘’But we feel that we have to move on as the issues involved need to be deliberated upon to the fullest extent,’’ Raila added.

On his part, Deputy President William Ruto said the BBI has now ended and that the promoters should not take Kenyans back to it.

"The die is cast. Hakuna vile wanaezarudisha haya maneno huko nyuma (there is no way they can take us back there)," Ruto said on Friday.

Ruto said leaders should now focus on serving Kenyans.

"Before talking about changing the Constitution, we should talk about economic planning. Before talking about political positions, we should talk about how four million jobless Kenyans will get jobs," he said.

Ruto spoke on Friday when he met the clergy from the Worldwide Gospel Churches of Kenya led by Presiding Bishop Eliud Wanyoike Karanja in Karen, Nairobi County.

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