Court of Appeal affirms BBI is unconstitutional and unlawful

Details: East Africa; 21 August 2021; 1193

In Summary

•“The whole process was null and void and in the end am happy we have kept the constitution sound and safe up and until this moment and may it remain as such,” Justice Patrick Kiage said.

•The Judges also appeared to raise the bar on amending the Constitution through popular initiative and making even harder to amend the country’s supreme law.

Court of Appeal has upheld the High Court ruling that BBI is null and void and its processes were unconstitutional.

In a majority decision on Friday, six of the seven-judge bench, headed by the Court’s President Daniel Musinga tore into the BBI process, declaring several stages and actions unconstitutional and unlawful.

The judges however expunged part of the High Court orders including one that said that President Uhuru Kenyatta had contravened Chapter Six of the Constitution.

The judges unanimously set aside the declaration that Uhuru contravened chapter six of the constitution for initiating the BBI process.

All judges have agreed that the basic structure is applicable in Kenya.

However, 5 judges affirmed that the basic structure doctrine limits the power to amend the constitution. Judges Okwengu and Sichale dissented.

All the judges have also unanimously ruled that civil proceedings can be instituted against the present, Justice Tuiyott dissented.

All judges have also agreed that the president does not have the authority to initiate changes to the constitution.

The bench has also held that the BBI steering committee has no legal capacity to initiate changes to the constitution.

Six judges have held that the constitution of Kenya cannot be subjected to the referendum unless. Justice Sichale dissented.

Justice Sichale also disagreed with the majority who held that IEBC did not have a quorum for carrying out verification of signatures and other administrative processes.

The judges also unanimously agreed that at the time of collection of BBI signatures there was no legislation given on verification of signatures.

"A permanent injunction is hereby issued barring IEBC from conducting a referendum on the constitutional amendment bill 2020," the judges said.

The Judges also appeared to raise the bar on amending the Constitution through popular initiative and making it even harder to amend the country’s supreme law.

The majority faulted the President for riding on a popular initiative – an avenue reserved for the common man – to instigate constitutional changes. By SHARON MAOMBO AND ANNETTE WAMBULWA, The Star