NAIROBI, Kenya May 13 – Kenya will not hold a national referendum to change the constitution after all, following a High Court ruling that nullified the entire Building Bridges Initiative (BBI) process as an illegality.
A five-judge bench ruled Thursday that President Uhuru Kenyatta violated the Constitution, particularly Chapter 6, when he initiated the process following his handshake with former Prime minister Raila Odinga with whom he promoted the process.
“The constitutional amendment Bill is an initiative of the president and the law is clear that the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative,” the judges Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said in a unanimous ruling delivered on Thursday night.
They said only Parliament or the citizens can initiate such process, thus, “A declaration is hereby made that civil proceedings can be instituted against the president for violating the Constitution, by initiating its amendment.”
The judges also faulted the Independent Electoral and Boundaries Commission (IEBC), saying all the decisions it made, including verifying BBI signatures.
The judges said, the commission was not properly constituted because it lacked the requisite quorum of five commissioners to make any major policy decision.
“All the decision IEBC made regarding the constitutional amendment Bill is illegal because it lacks the quorum required,” the judges ruled, “At the time the BBI report was launched, there was no legislation in place to guide the referendum process.”
As soon as the court ruling was issued, Deputy President William Ruto was opposed to the constitutional amendments tweeted:
Solicitor General Ken Ogeto has indicated that the state will appeal the decision.
On the question of multiple questions to be used in the referendum that its promoters wanted held in July, the judges said Constitutional amendments should be presented to the people as separate referendum questions.
“All proposed amendments to the Constitution should be presented separately to the people as separate questions to be voted for separately. This upholds the sovereignty of the people expressed in the Constitution’s preamble,” the judges said.
And they added, “to lump all proposals together as an omnibus bill for the purposes of either laundering the whole bill is not permissible under our constitution. Not only does such a scenario lead to confusion but it also denies voters the freedom of choice.”
They also declared the BBI promoters’ intention to create 70 new constituencies as invalid, null and void, saying the delimitation of electoral boundaries is the sole function of IEBC under Article 89 of The Constitution of Kenya.
The Court equally found that the BBI Steering Committee failed to give people information and sensitize them prior to collecting signatures which makes the process unconstitutional.