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Appellate court affirms constitution safeguards

Court of Appeal judges, June 30, 2021. [Denish Ochieng, Standard]

Building Bridges Initiative (BBI) joined the growing list of failed attempts to amend the 2010 Constitution, lifting the lid on grey areas in the popular initiative route.

The Court of Appeal declared the process illegal, spelling doom for the initiative that had sailed through all the stages save for the final vote by the people.

The landmark judgement cast spotlight on signature verification by the electoral agency, public participation and the role of Members of County Assembly and Members of Parliament in amending the Constitution under Article 257.

In 2016, Okoa Kenya Initiative by Raila Odinga’s Coalition for Reforms and Democracy (CORD) was thrown out by the Independent Electoral and Boundaries Commission (IEBC) at the signature verification stage on the basis of “incomprehensible writings and drawings.”

The opposition accused the commission of working with the ruling Jubilee to frustrate the initiative.

Punguza Mizigo, a similar initiative by Thirdway Alliance Kenya Party of Dr Ekuru Aukot sailed through the signature verification but was rejected at the county assemblies stage.

On Friday, the Court of Appeal judges cited lack of quorum at IEBC for signature verification, lack of civic education, lack of referendum law as well as the involvement of President Uhuru Kenyatta in an initiative that should be people-driven.

Yesterday, BBI joint secretary Paul Mwangi accused the Judiciary of blocking Kenyans from amending the Constitution even as he indicated plans to pursue extra-constitutional means to amend the document.

Mwangi said this was the first time an initiative supported by all stakeholders was sabotaged by the Judiciary, stating that other previous attempts failed at different stages.

“Since the promulgation of this Constitution, the need to amend the Constitution was on the table. There have been over 20 attempts at amendment,” he said

“Each has failed because of its own challenges. However, for the first time, these attempts are failing because the Judiciary is determined that it shall stop these attempts and make them impossible. What we are facing now is a dare by the Judiciary,” he added.

BBI advisory task force, the late Yusuf Haji (Chairman), Vice-Chairman Adams Oloo, and joint-secretary Paul Mwangi. April 17, 2019. [Boniface Okendo, Standard]

Mwangi claimed that the Judiciary has now squarely put itself as part of the debate in amending the supreme law by swearing to frustrate any attempt by the people.

“They have told Parliament they will not answer their queries, even though Parliament represents us. They have told the Executive that it shall not implement any administrative measure unless the Judiciary likes it. They have refused to address any complaints against their own members and instead passed a law granting themselves absolute immunity against the clear wording of the Constitution,” he stated.

He claimed that a “rogue Judiciary” is more dangerous than a rogue Executive or Parliament.

Nyeri Town MP Ngunjiri Wambugu, said that the Judiciary needs a thorough scrutiny to determine if the ruling was based on their personal biases. Wambugu said that some of the proposals in the initiative were touching on the judges adversely, suggesting that they may have made a decision in protest.

Allies of Deputy President William Ruto said that the framers of the Constitution made sure that the document is not mutilated at will by those in power by ensuring proper checks and balances.

Garissa Township MP Aden Duale said the ruling has proved that the Constitution has self-defense against those who could use their influence to amend it at will.

“It has proved that however powerful you are, the Constitution of Kenya as provided by the two judgements is sacred document and must be protected jealously,” he added.

Soy MP Caleb Kositany concurred with Duale saying that the framers of the Constitution had BBI-promoters in mind when they put safeguards against selfish amendments.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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