Court stops electoral body from planning the BBI referendum

Wednesday, February 10th, 2021 00:00 | By
Economist David Ndii. PHOTO/File

Bernice Mbugua @BerniceMuhindi

A five-judge bench has restrained the Independent Electoral and Boundaries Commission (IEBC) from conducting the Building Bridges Initiative (BBI) referendum.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita gave the temporary orders pending the hearing of seven petitions filed to challenge the BBI process.

“We believe it is in the public interest that appropriate conservatory orders be granted.

Consequently, we hereby issue a conservatory order restraining IEBC from facilitating and subjecting the Constitution Amendment Bill 2020 to a referendum or taking any other action to advance the Constitution Amendment Bill 2020 pending the hearing and determinate of the consolidated petitions,” ruled the judges.

The petition was filed by Economist David Ndii and four others. It was later consolidated with six other petitions including one filed by Thirdway Alliance.

The alliance, in its petition, claimed there was significant development in the referendum Bill following a press statement from the commission certifying the bill had met the requisite threshold having been supported by more than 1 million registered voters and was submitting the bill to each county for consideration.

Siaya was the first to pass the bill in its Assembly. At least 24 counties have to give it a nod within three months for it to proceed to the next stage.

After the requisite counties pass it, they will write to the Speaker of the National Assembly on their vote upon which the Speakers will introduce it to the MPs before it is subjected to a referendum.

Ndii filed the petition alongside Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.

Through the Law Society of Kenya President Nelson Havi, they sued Chief Government Advisor, Speaker of National Assembly, Speaker of Senate and IEBC.

They are challenging the constitutional amendments, which could deal a blow to the Building Bridges Initiative.

According to the activists, Chapter One of the Constitution on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on the Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter 10 on the Judiciary, which BBI intends to rely on cannot be amended.

“The recent developments in the country’s legislative history confirm a threatened abrogation, contravention and violation of Chapters 1, 2, 4, 9 and 10 and in particular Articles 256 and 257 of the Constitution by the respondents,” they say in court documents.

They accuse Parliament of intending to pass laws that alter the basic structure of the Kenyan Constitutional foundation claiming Parliament lacks clear parameters to guide it on basic structure amendments in the exercise of authority.

“In the absence of clear guideposts to define the scope of Parliament’s authority to amend the Constitution, Parliament appears to adopt the approach that it enjoys an unlimited authority, a carte blanc, to consider any and all amendments to the Constitution,” says the five in court documents.

 According to them, they are apprehensive that the approach is likely to lead parliament to consider and adopt now and in the future amendments, which constitute essential features of the 2010 Constitution.

While the judges did not stop the Assemblies or Parliament from debating the proposals they said they had powers to intervene even at the tail end of the process.  The case will now proceed to a full hearing.

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