Supreme Court: BBI Bill unconstitutional

Thursday, March 31st, 2022 16:08 | By
Chief Justice Martha Koome.
Chief Justice Martha Koome. PHOTO/Courtesy

The Building Bridges Initiative (BBI) was on Thursday buried after the Supreme Court hammered the last nail in the coffin after five of the Judges re-affirmed that the Court of Appeal’s ruling that the Constitutional Amendment Bill, 2020, was unconstitutional on grounds that President Uhuru Kenyatta initiated the constitutional reform project.

The apex court ruled that Uhuru ought not to have initiated the referendum issues, through a popular initiative which is against Article 257 of the Constitution which guides the process of amending the supreme law, with five of the seven judges saying the president is not an ordinary citizen and therefore should not have to lead the project.

Justices Martha Koome (CJ), Philomena Mwilu (DCJ), Smokin Wanjala, Ibrahim Mohammed and William Ouko ruled that the BBI bill which was felled by the High Court and the Court of Appeal was unconstitutional while Isaac Lenaola and Njoki Ndung’u dissented.

“The president cannot initiate constitutional amendment or changes through a popular initiative under Article 257 of the Constitution. Njoki Ndung’u dissented. The big aspect of this issue is that the president initiated the amendment process. Njoki and Lenaola dissented.

“Consequently, under Article 257 of the constitution, the Constitutional Amendment Bill, 2020 is unconstitutional, ” Koome said after all the seven judges had given their ruling.

Seven-judge bench of the Court of Appeal, in August last year, disappointed the president when they declared the initiative, which had been endorsed by county assemblies and Parliament, unconstitutional, a position that was reaffirmed by the Supreme court.

They ruled that the BBI constitutional committee, a body created by the president, was illegal, adding that Mr Kenyatta had failed the leadership and integrity test and warned that the president could be sued in his personal capacity.

While issuing their ruling, five High Court judges- Justice Joel Ngugi, Justice George Odunga, Justice Jairus Ngaah, Justice Teresia Matheka, and Justice Chacha Mwita, in a scathing ruling delivered in May last year, blocked the government-backed plan to make fundamental changes to the country’s constitution, arguing that it was irregular, illegal and unconstitutional because Uhuru had violated the constitution by initiating a process which ought to have been started by ordinary citizens.

The judges rubbished the five million votes collected from citizens by the BBI task force to support the referendum push and ruled that the initiative was not started, or led, by citizens, and that only the people, not the government, can initiate and conduct a process to amend the constitution through a referendum.

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