Five-judge Bench to rule on BBI referendum document

Thursday, May 13th, 2021 00:00 | By
President Uhuru Kenyatta and ODM leader Raila Odinga at a past function to popularise the BBI Bill in Kisumu. Photo/PD/File

Bernice Mbugua @BerniceMuhindi

A five-judge Bench is today expected to deliver a judgement on whether the Building Bridges Initiative Bill will proceed to a referendum.

Constitutional and Human Rights Deputy Registrar Njeri Thuku, in a notice, said the judgement will be delivered today at 2.30pm.

Ruling comes only two days after the Senate approved the BBI Bill with a resounding 51 votes against 12, who voted in disapproval. Only Nominated Senator Mary Seneta abstained from the vote.

The National Assembly had last week also overwhelmingly passed the Bill with a record 224 Members of Parliament voting “Yes” against 63 MPs who voted “No”.

Only Two MPs abstained, among them Deputy Speaker Moses Cheboi and Qalicha Gufu (Moyale). 

In February, Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita had issued orders restraining the Independent Electoral and Boundaries Commission from facilitating the BBI referendum Bill on grounds of public interest.

Five-judge Bench issued further orders on March 26 that if the Bill would be enacted by Parliament without the need of a referendum, it would not come into force pending determination of the petition.

According to the judges, they have the power to intervene at the tail end of the process under scrutiny. 

The petition was filed by economist David Ndii and four other activists, but it was later consolidated with seven other petitions.

During hearing of the suit, the petitioners told the Bench that the BBI process seeks to alter the basic structure of the Constitution.

Popular initiative

“The President is not the constituted power. There is no doubt an initiative powered by the President cannot be a popular initiative,” LSK President Nelson Havi told the court. 

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita heard that Parliament intends to pass laws that alter the basic structure of the Kenyan constitutional foundation.

The other petitioners argued that the Bill does not reflect the will of the people and the appropriate remedy is, therefore being declared unconstitutional.

The five-judge Bench also heard that the public was completely locked out in amendments of the Constitution, as most Kenyans do not have Internet connection.

“Within 12 hours of publishing the amendment, they quickly started collecting signatures and then it was hurriedly taken to county Assemblies without verification of the signatures...” the court heard.

According to the petitioners, the respondents violated article 43(1) in regards to prioritising the use of public funds.

“We have an elected official working with a private citizen and with the use of public funds…Why should they be allowed to use public funds? They should use their own money…This use of public funds needs to be addressed,” the court heard.

According to the petitioners, the former Chief Justice had advised the President to dissolve Parliament and that means the House as it is, is not constitutional.

Petitioners argued that the BBI Bill had a mixture of provisions that can be amended by a parliamentary and popular initiatives.

Court also heard that the Constitution provides for the delimitation of boundaries, which is an authority vested for IEBC and not through the BBI process.

According to the petitioners, 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, and Chapter Nine on the Executive and Chapter 10 on the Judiciary, which BBI intends to rely on cannot be amended.

The petitioners accused the secretariat of working past the deadline and passing the Bill without giving the public an opportunity to participate.

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