The Court of Appeal judges have upheld the High Court ruling made in May this year, declaring the Building Bridges Initiative (BBI) “unconstitutional”.
In their ruling the judges upheld that “The basic structure of the Constitution can only be altered through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum “.
“The Constitution of Kenya Amendment Bill, 2020 is unconstitutional and a usurpation of the People’s exercise of sovereign power,” the Judges said.
The judges further ruled that President, Uhuru Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
“The President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution”.
“The President is not above the law. He must be subordinate to the constitution”.
In May this year, The High Court ruled the BBI to be ‘unconstitutional’.
“The BBI taskforce was a presidential task force and not the people’s initiative,” the Judges said.
“That the constitution of Kenya 2010 is a transformative one has never been in dispute, its implementation has not been without its challenges. The constitution declares that all sovereign power belongs to the people of Kenya” – Court of Appeal President Daniel Musinga
The ruling further declared that all the decisions so made by the IEBC in relation to the proposed constitutional amendment and in particular to the Constitutional Amendment Bill were invalid, null and void for lack of quorum.
The BBI is the child of the “handshake” between President Uhuru Kenyatta and Opposition leader Raila Odinga in the political tensions that ensued following the disputed 2017 presidential elections.
The Building Bridges task force, led by SEnator Yusuf Haji was unveiled to oversee the report.
Ahmednasir Abdullahi SC:I congratulate the lawyers for the respondents lead by Rais @NelsonHavi and Hon @MarthaKarua SC…great advocacy, excellent research and powerful delivery #BBIRuling
High Court – BBI Unconstitutional