Was BBI a road to nowhere?

The BBI Bill that was thrown out by the Court of Appeal on Friday had dominated talk amongst Kenyans for a long time.

It is not clear if the court verdict is the end of the road for the bill that was projected to pave way for the ammendment of the constitution.

However, it was a stunning rebuke to the handshake duo (President Uhuru Kenyatta and his fiercest challenger in the last general election, Raila Odinga).

The two had shaken hands after and vowed to lead the country to have a peaceful and election free of controversy and hate that has punctuated Kenyan elections over time.

But the court headed by Justice Daniel Musinga declared the Constitution of Kenya Amendment Bill “unconstitutional and an usurpation of the rights of Kenyans”.

This dealt a blow to the proponents of the bill, considering the fact that unspecified amount of money had gone into precipitating it.

BBI had also been stopped albeit temporarily last year due to Covid-19 pandemic.

The BBI task force spent millions going round the country for more than a year at the tax payer’s expense.

Members of the County Assembly were also enticed by a car grant to pass the bill in their assemblies.

But the landmark ruling delivered on August 20, 2021 after 7 weeks of deliberation has not only derailed Kenyatta and Odinga’s national reconciliation and legal reform bid, but also sent a loud message by the judiciary on the integrity of the 2010 Constitution.

Subsequently, the court declared the Kenya Gazette notice dated January 10, 2020 that kicked off the BBI promotion process as an unlawful and unconstitutional entity. It also issued a permanent injunction restraining the IEBC from any activity related to BBI.

“A declaration is hereby made that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President vide Kenya Gazette Notice No. 264 of 3 January, 2020 and published in a special issue of the Kenya Gazette of 10 January, 2020 is an unconstitutional and unlawful entity,” the verdict read.

The appeals court agreed with the lower court’s previous ruling that the BBI steering committee was illegal.

“A Declaration is hereby made that being an unconstitutional and unlawful entity, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, has no legal capacity to initiate any action towards promoting constitutional changes under Article 257 of the Constitution,” the judgement went on.

“A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020,” the court said in the ruling read by appeals court president Justice Daniel Musinga.

In so doing, the judges sent the BBI legal team back to the drawing board , confirming a resounding victory for defenders of the 2010 constitution.

“The 2020 Constitutional Amendment Bill is unconstitutional, and an usurpation of the people’s rights. The appeal fails and has been dismissed,” read Justice Musinga.

The appeals court also trod its own path, disagreeing with the High Court’s ruling on several decisions.

“A declaration is hereby made that the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power,” the judge said.

The judges also agreed that President Kenyatta, had acted outside his constitutionally granted powers.

The bench was emphatic that the basic structure doctrine which the lower court had defined was still a valid concern in constitution-making and amendments.

“The principle of basic doctrine in constitutional amendments can be achieved using four pillars, argued the judges, through civic education, parliamentary process, public participation and a constituent assembly debate,” said Justice Musinga.

The judge went further to explain his interpretation of the law as expressly barring the holder of the presidential office from starting or promoting referendum drives.

“The constitution does not allow the president to initiate or promote a popular initiative,” he said.

Justice Gatembu Kairu concurred, saying the law was subject to change but added that some aspects of the document were unchangeable.

“The need for a constitution that is able evolve with social and political conditions is perhaps greatest in a developing country, the really fundamental aspects of a constitution should be immune from alteration,” said the judge.

He said clauses in the constitution cannot be used to mutilate the same through amendments that run counter to its purposes.

Based on the strong belief, the court ruled that the president had erred according to the provisions of Section 257 of Chapter 16.

The section contains requirements to be met for a popular initiative.

The court also said that the President was unfairly held liable for violating Chapter 6 of the constitution, which is an impeachable offense.

Judges found fault with the fact that he was not personally served with summons to the court to defend himself, leaving room for the error of condemning him without a hearing.

The appeals court also struck out the proposal to create an additional 70 constituencies as illegal and designed to circumvent the IEBC’s legal mandate.

“BBI is an attack on the powers and functions of the IEBC as outlined in the IEBC Act,” said Justice Musinga.

He found the BBI-related voter registration drive an extra-legal activity, but reiterated the IEBC’s role in continuous voter registration.

“There is no statutory requirement for IEBC to carry out a nationwide voter registration, before a proposed referendum, but the commission is under obligation to carry out continuous voter registration in all constituencies,” the judge added.

Making his ruling, Justice Kiage faulted Parliament for failure to pass a Referendum Act.

“The referendum law has never been passed despite the observation of this glaring need by Justice Jane Nyanweya two years ago,” said Justice Kiage.

He also found the 73 BBI proposals a cumbersome, confusing and long-winded process for Kenyans to be subjected to.

“The BBI initiative has way too many proposals. Some require a referendum ans some do not. With the omnibus Bill carrying 73 proposals, the confusion becomes intolerable. The bringing of constitutional amendments should not become the norm, but should be rare,” the judge said.

Justice Musinga agreed with his colleague, “A declaration is hereby made that Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the People.”

The court disputed the defence counsel’s submission that the BBI process had successfully carried out public participation as required by the law when they posed copies of the document online for mass consumption.

“The appellants simply posted versions of BBI on the internet. They didn’t tell the court how many people access to mobile devices or internet connection. According to the 2019 national survey done by the Kenya National Bureau Statistics, only 22.6 percent of Kenyans have internet access, while only 10 percent have access to a computer,” said Justice Musinga.

Each of the seven judges wrote down their individual judgements in a studied display of the seriousness with which they view the rule of law.

It is the first time that each sitting judge on an appeals court bench has penned down a judgement on a matter they jointly adjudicated.

On the matter of whether a basic structure doctrine existed for the constitution, appellate judge Francis Tuiyott said it was anchored in Article 255(1) of the Constitution.

“The making and unmaking of the constitution is a preserve of people exercising their constituent power. By falling short on making provisions and procedure, textual reading of Article 255(1) matches or is in accord with contextual interpretation of the clause that power to change constitution rests elsewhere and need not be codified,” ruled Justice Tuiyott.

Justice Tuiyott also upheld the decision on the quorum threshold at the electoral agency saying the number of commissioners must not fall below 4.

“To hold that the quorum should be anything less is to weaken the commission. It is common ground that IEBC formulated administrative procedures to guide the verification of BBI signatures, I reach the same decision as the High Court that IEBC was not quorate when it embarked the business of verifying signatures,” Justice Tuiyott said.

“The quorum of IEBC must be seen against the full composition of 7,” he affirmed“The president is not allowed to initiate or promote a popular initiative, as that role has been left to ordinary citizens. The law does not see a scenario in which the president takes off his executive robes to initiate a popular initiative,” the judge said.

On his part, Justice Kiage reminded the court that the president is not above the law, insisting that the head of state does not enjoy extrajudicial powers. He also affirmed that the head of state does not enjoy absolute immunity from the law.

“The president only enjoys the powers donated to him by the constitution. He does not enjoy any other powers outside those boundaries,” said Justice Kiage.

Since 2020, Kenyans have been treated to the high stakes legal drama in the BBI’s fight to survive the choppy waters of proving its validity.

A court challenge mounted by among others former Justice and Constitutional Affairs Minister Martha Karua, Katiba Institute, Isaac Aluochier has seen the teams of lawyers representing either side argue their cases in a battle that has gripped the soul of the nation.

Reacting to the verdict, ODM leader Raila Odinga appeared to acknowledge the futility of a continued legal challenge to the previous rulings.

He however refused to rule out the inclusion of the proposed changes in different platforms.

“It is likely that today’s Court of Appeal ruling is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today. But we feel that we have to move on,” said Odinga on Twitter on Friday evening.

Rarieda MP and constitutional law expert Otiende Amollo also alluded to the possibility of parts of BBI being revived through parliamentary Bills.

“We are going to consider other options. There are certain ways of initiating changes to the constitution, but it cannot be done by the president. Some of the issues raised can be raised and passed in Parliament, and the process itself can be started once again, but with different people leading it,” he said.

UDA leader and Deputy President William Ruto thanked God for the courtroom reprieve, calling it an answered prayer.

“God our heavenly father has come through for Kenya. May he help hustlers to build the economy from bottom up,” he wrote on Twitter.

And on Saturday, Ruto said the country should let BBI rest and focus on critical issues like strengthening the economy through Jubilee party’s Big Four Agenda.

Saturday, Attorney General Paul Kihara also said his legal team was looking at the court verdict and may proceed to the Supreme Court in the new week.

  • Additional Reporting by Nyang’au Araka
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