Court of Appeal throws out BBI
By Brian Okoth
| August 20th 2021
The Court of Appeal on Friday, August 20 ruled that President Uhuru Kenyatta’s attempt to change the Constitution through the BBI process was unconstitutional.
A majority of the judges ruled that Kenyatta is not legally allowed to initiate changes to the Constitution through the popular initiative, an avenue reserved for the common mwananchi.
Justices Roselyn Nambuye and Hannah Okwengu observed that delimitation functions belong to the IEBC, and the agency should, therefore, be actively involved in the process. The BBI proponents did not consult the IEBC while suggesting an increase to the number of constituencies from 290 to 360, the jurists said.
A majority of the judges further ruled that the Constitution of Kenya has a basic structure, which should be protected, and that proposals to change the structure must attract overwhelming support by the citizens.
The support, the judges observed, can take the form of a successful Referendum, but before the Referendum is held, adequate public participation must be conducted.
Appellate court president Daniel Musinga said a rigorous Constitutional change procedure – similar to that used to adopt the 2010 Constitution – should have been observed while pushing the BBI reforms.
Musinga further ruled that the BBI Steering Committee had no Constitutional mandate to initiate changes through the popular initiative route.
The Court of Appeal President also ruled that adequate public participation was not conducted in the lead-up to the would-be Referendum.
“Although more than a million voters signed in support of the amendment Bill, it was not demonstrated that the exercise was conducted transparently,” he said.
Nearly all the seven judges ruled that President Kenyatta is not legally allowed to use the popular initiative route to propose changes to the supreme law.
Below is a summary of how each judge ruled:
•Civil proceedings were initiated against President without giving him right to be heard.
•IEBC was properly constituted during BBI signatures verification.
• IEBC had the right legal framework to oversee a Referendum.
• President cannot initiate Constitutional change through popular initiative.
• IEBC has no role in increasing or decreasing number of constituencies. It wasn’t unconstitutional for BBI to propose increase in number of constituencies without involving IEBC.
• IEBC was improperly constituted during BBI signatures verification.
• President cannot initiate Constitutional change through popular initiative. President does not fall under category of ‘general public’.
• Doctrine of basic structure: amendable, but within the law.
• All Constitutional provisions are amendable, without changing the Constitution in its entirety.
• Verification of signatures was not properly conducted by IEBC. There was no sufficient notice period given to public to verify list of signatures, names.
• The IEBC had some elements of statutory framework to conduct a Referendum.
• Absence of legal framework does not mean that IEBC should be stopped from conducting its legal duties.
• IEBC was not properly constituted when verifying signatures and conducting its mandate in regard to BBI. IEBC Act places quorum at five.
• Was the President served with a petition in which he was named as respondent, and was he given a notice of hearing? No. The Attorney-General could not represent the President, and therefore, the President should have been personally served.
• President can be sued in his personal capacity during his tenure.
• Does basic structure doctrine apply in Kenya? Yes. Constitution contains a core of implicitly unamendable principles that give it its identity. Pakistan, Bangladesh, Argentina all have embraced basic structure doctrine, which has now spread across the world. ‘Basic structure doctrine is legitimate and sound. Every house must have some structure’.
• People were not mere observers in the making of 2010 Constitution.
• Amendments proposed in BBI were ‘so far-reaching in character, scope and content; they were effectively dismembering the Constitution, blasting a huge hole in it and essentially creating a new Constitutional order’.
• Referendum could not be held unless the process leading to it, including civic education, public participation, collection of views and Assembly debate, was observed. 'Referendum procedure can be made of no effect by deficit of prior civic education and public participation'.
• Popular initiative is citizen-conceived and driven. It must be initiated by the ‘common mwananchi’, not the President. The President could use the Parliamentary initiative through his political party.
• Popular initiative route was not available to the President.
• Public participation wasn’t adequately conducted, though the signatures collected were lawfully gathered. County Assemblies did not involve resident-citizens in their counties. Some Assemblies ‘passed the Bill in a matter of days’ without involving the citizens.
• High Court judges condemned the President unheard, as he wasn’t served with a notice of hearing.
• The President can be sued in his personal capacity; he doesn't enjoy absolute immunity. He may be sued outside his Constitutional duties.
• Referendum in context of proposed Constitutional amendment by popular initiative must be governed by specific properly thought-out legislation.
• IEBC lacked legal framework to verify BBI signatures. It also lacked quorum. IEBC quorum must be five. Such a ‘vital’ role [of overseeing a Referendum] requires full IEBC composition.
• I am of the view that people can make a new Constitution, but the legal process of changing the Constitution must be followed. The process includes: civic education, public participation, constituent Assembly debate, consultation and public discourse and Referendum.
• Parliament has no power to amend or change the basic structure of the Constitution.
• Proposed Constitutional amendment must meet procedural and substantive requirements. Constitution of Kenya has a basic structure. No specific unamendable provisions have been provided.
• President cannot use popular initiative to recommend changes to the Constitution.
• No evidence was tabled in court that there was adequate public participation.
• Lack of public participation rendered the BBI process Constitutionally unsustainable.
• BBI Secretariat was not promoter of the BBI; the President was. Junet Mohamed wasn’t also qualified to use popular initiative route because he, being an MP, is a State officer.
• BBI proposing an increase in number of constituencies without IEBC’s input was unconstitutional.
• There was no legislation governing collection of signatures.
• Basic structure of the Constitution: 'does not exist'.
• BBI’s proposal to increase number of constituencies from 290 to 360: 'violates procedures of delimitation of electoral units and usurps IEBC’s mandate'.
• President is not immune to litigation in personal capacity.
• There’s no contestation that Kenya’s Constitution has a basic structure. What is in contention is what constitutes a basic structure.
• Rigorous Constitutional change procedure similar to that used to adopt the 2010 Constitution must have been observed.
• President was initiator of the BBI Constitutional change Bill.
• BBI Secretariat was the promoter of the BBI.
• BBI Steering Committee has no Constitutional mandate to initiate changes through the popular initiative route.
• Public participation was not conducted appropriately.
• President cannot initiate changes to the Constitution through popular initiative.
• BBI proponents overstepped their mandate by suggesting an increase in the number of constituencies by 70 without involving the IEBC.
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