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Court puts breaks on BBI referendum

By Kamau Muthoni | February 9th 2021

President Uhuru Kenyatta and ODM leader Raila Odinga during the National launch of the BBI signatures collection exercise at KICC in Nairobi County.

The High Court yesterday blocked the Independent Elections and Boundaries Commission from subjecting the Building Bridges Initiative Bill to a referendum, throwing the Constitution changing process in limbo.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Chacha Mwita, however, ordered that the process to pass the bill to amend the 2010 Constitution can continue before the 47 county assemblies and Parliament.

The issue of whether the referendum will be held will now be made after the hearing and determination of seven cases filed before the court.

“We believe that it is in the public interest that appropriate orders be granted. Consequently, we hereby order that a conservatory order be and is hereby issued restraining the IEBC from facilitating and subjecting the Constitution (Amendment) Bill 2020 to a referendum or taking any other action to advance the Constitution (Amendment) Bill 2020 pending the hearing and determinate of the consolidated petitions,” the bench ruled.

According to the timelines, the county assemblies have 90 days to debate and pass or reject the BBI Bill, which is then supposed to be forwarded to the two Houses of Parliament, the Senate and the National Assembly.

Although the assemblies and Parliament may pass the Bill, the judges said that the court has powers to declare the process as unconstitutional. They found that although the court has no powers to stop a constitutional function, it has powers to oversight them and determine whether the law was followed.

“Rushing the Constitutional (Amendment) Bill through County Assemblies and eventually Parliament, does not inoculate the resultant proposed constitutional amendment from the possibility that it could yet, upon final disposition of these petitions, be declared invalid,” the court added. 

Earlier, the court rejected the Attorney General’s plea to suspend the hearing of the cases in order to allow the Supreme Court to settle two cases filed by Makueni Governor Kivutha Kibwana and Nandi and Kericho counties.

The AG’s lawyer, Emmanuel Mbita, informed the court that there was a likelihood of the two courts delivering contradicting verdicts on the same issues. Due to the hierarchy of courts, he was of the view that the Supreme Court should first settle the dispute before it.

“The matter cannot be lying before the Supreme Court and the High Court for determination. We pray that we stay these proceedings until the ones at the Supreme Court are determined,” Mbita said.

BBI has attracted 11 cases, out of which seven are filed before the High Court in Milimani by, among others, economist David Ndii, the others by the nurses’ union, Thirdway Alliance, Justus Juma, Isaac Oluchier, Morara Omike, Isaac Ogola and an additional two others are filed in Mombasa. The remainder is before the highest court in the land.

The cases before Milimani Court have 27 parties.

Owing to the huge number of parties in the case, the court directed that it will consolidate the seven cases and hear them on March 17, 18 and 19. Each party will have 30 minutes to argue its case.

There are those who are seeking a declaration that the IEBC is not properly constituted while others want the court to declare that there are sections of the Constitution which cannot be changed.

At the same time, another case seeks a verdict that the government cannot lead a constitutional change drive through the popular initiative route while another party argues that there is no way IEBC can verify signatures as there is no database for such information.

In the case, Thirdway Alliance wants the court to declare the BBI as unconstitutional.

Uncharted waters

The party said it is aggrieved by use of state machinery to collect signatures and the seven-day period given by the BBI proponents for signature collection stating that it was not sufficient time for Kenyans to read and understand what they were endorsing.

Ndii and activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei lodged the first case.

The petitioners claim the country is now heading into uncharted waters.

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