NAIROBI, Kenya, Aug 20 – A 7-member Court of Appeal bench was on Friday morning set to issue its judgment on the contested Building Bridges Initiative (BBI) constitutional review process, popularly referred to by its promoters as ‘reggae’, after nearly three weeks of deliberations since the close of submissions by parties.
The court’s President Daniel Musinga, Justices Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Hannah Okwengu, Gatembu Kairu and Francis Tuiyot will determine whether a taskforce established to initiative the process was established in line with the law.
They will also rule on the applicability of the basic structure doctrine in Kenya, the president’s limits on constitutional review process and whether promoters of constitutional amendments can create and allocate new constituencies.
The bench is also expected to determine the contentious issue of whether voters should consider amendments in a referendum as multiple and distinct questions or as an omnibus only voting ‘yes’ or ‘no’.
The basic structure doctrine and the electoral agency’s manade on constituency boundary delimitation formed part of 21 declarations issued by a five-judge bench of Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua in their decision to annul the process on May 14.
The Constitutional Court determined the basic structure doctrine is applicable thus limits amendment processes stipulated in Articles 255, 256 and 257 unless the primary constituent power is invoked through “four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”
The Justice Ngugi-led court also issued three declarations directed at President Uhuru Kenyatta – the initiator of BBI jointly with Raila Odinga, his arch-enemy in the 2017 presidential election – key among them a finding that the President violated Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i).
The court also held that the President lacks the authority to initiate changes to the Constitution and that he could face civil proceedings for any action or inaction in the performance of official duties during his tenure.
The Ngugi-led Constitutional Court also declared a BBI Taskforce established by President Kenyatta in January 2020 as an unconstitutional entity despite it having being gazzetted by government press.
As a result, the constitutional review process undertaken by the Taskforce was considered an attempt to usurp the citizen’s powers to initiate an amendment through a popular initiative envisaged under Article 257 of the Constitution.
The Court of Appeal is also expected to pronounce itself on the quorum threshold of the Independent Electoral and Boundaries Commission (IEBC), and the implications of lack of quorum set out under Section 8 of the IEBC Act.
Under the Act, the agency which sits a maximum of seven commissioners has a quorum threshold of four members without whom the Constitutional Court said it could not conduct a referendum exercise including verification of promoters’ signatures.
The bench also restrained promoters of constitutional amendments from interfering with delimitation of constituency boundaries, and exclusive function of IEBC.
The court also held that lack of a legal framework to guide the conduct of referenda, including collection, presentation, and verification of promoters’ signatures, rendered the BBI process flawed.
The Ngugi bench also clarified that a Constitutional Amendment Bill could not be altered by County Assemblies, the Senate or National Assembly.
The court also required promoters to draft separate and distinct questions for consideration in a referendum citing Article 557(10) of the Constitution, ruling out an omnibus ‘yes’ or ‘no’ plebiscite on multiple issues.
During the hearing of the appeal in July, Senior Counsel John Khaminwa asked the Court of Appeal to decline an invitation to invalidate the Constitutional Court judgment but reinforce it instead.
“One contribution that this court should make to the able judgment is for you to strengthen that judgment by making a firm ruling that the Constitution we have now is un-amendable,” he said.
Lawyers who represented the BBI Taskforce, President Kenyatta, and Odinga delinked the two leaders from the process saying the initiative was conceived and promoted by legislators Junet Mohamed and Dennis Waweru.
“Against all evidence, which was not controverted, the promoters were Waweru and Junet but the (High) Court insists on finding that His Excellency President Uhuru Kenyatta was the promoter of this Initiative,” lawyer Otiende Amollo told the Court of Appeal on June 30.
“Having realized that the President was not the prompter, the Court then coined a term initiator which does not exist in Article 57. There is only a promoter and the supporter, in respect this word (initiator) is then used in the judgement to camouflage the difficulty to identify the promoters,” he explained.
Speaking ahead of the Court of Appeal ruling on Wednesday, Odinga who has unsuccessfully sought to be elected as President five time said he would not challenge the much-awaited ruling at the Supreme Court instead saying he would focus on the August 2022 presidential election.
“We want to concentrate on the coming elections, once we make the government, we bring BBI back. It’s a people driven process, we can’t sneak it in Parliament. If the Court of Appeal knocks it down, then we will place the document in an envelope as we wait for the new government to bring it back.”
