Court silences BBI reggae tune in a landmark 10-hour verdict

President of the Court of appeal Justice Daniel Musinga at the Supreme Court on Friday, August 20, 2021, during the judgement of the BBI appeal case. [Collins Kweyu, Standard]

The push to change the Constitution through the Building Bridges Initiative (BBI) ended yesterday in a landmark decision by seven judges of the Court of Appeal that declared the process illegal.

Appellate judges Daniel Musinga, Roseline Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott declared that BBI was an illegal attempt to alter the structure of the Constitution that cannot be subjected to a referendum.

Just like their colleagues at the High Court, the judges took their time to deliver what would be remembered as the judgment of the year, which defined the political activities a year to the General Election.

After more than 10 hours in which each of the seven judges opted to give their decision, Justice Musinga gave the final verdict of the majority decisions, with Justice Sichale as the only dissenting voice in departing from the High Court decision.

“At the end, the court issues a permanent injunction barring the Independent Electoral and Boundaries Commission from carrying out any referendum in regard to the BBI Constitutional Amendment Bill,” ruled Musinga.

Their verdict spelt the end of the road for the BBI reggae, which was viewed as a determinant of the political shape the country would take in preparation for next year’s elections.

Just like the parties in the BBI case could not agree on any single issue, the judges, too, differed on their interpretation of the 23 issues in dispute. Each of them read what they believed was the correct interpretation.

It was not only a landmark decision on the content of what the judges ruled on, but also precedent setting in the manner the judges took breaks in between their decisions that lasted from 9am to 7.30pm.

Although the judges differed on their approach to resolving the 23 issues from the High Court decision, they were all in agreement on upholding of 14 findings of the High Court while setting aside all the adverse findings against President Uhuru Kenyatta.

Their decision, however, pointed to the fact that Uhuru’s involvement in the process was among the fatal blows that led to BBI’s death, given he has no legal authority to initiate constitutional changes through a popular initiative.

“The President was directly involved in the BBI process through the handshake with former Prime Minister Raila Odinga. He does not have the authority to amend the Constitution through a popular initiative since that is a reserve of the common citizen,” ruled the judges.

Although the judges found that the High Court wrongly found the President to have breached the Constitution for initiating the BBI, they ruled that he could be personally sued in a civil case for his acts done outside constitutional limits.

They upheld the decision that the BBI task-force and the steering committee were illegal entities created by the President and that they had no legal capacity to promote the constitutional changes.

The majority judges upheld the High Court findings that the basic structure principle was applicable in amending the Constitution and that some clauses could not be amended without conducting civic education, public participation, debates on legislative assemblies and referendum.

“The basic structure principle is applicable to Kenya, and it limits the power to amend the constitution as provided in Article 255 of the Constitution. The basic structure can only be amended by following the four sequential orders before a referendum,” ruled Justice Musinga.

Justices Okwengu, Sichale and Gatembu however dissented on the ruling that the basic structure did not limit the power to amend the Constitution.

Court of Appeal Judges from left to right Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyott at the Supreme court building on Friday, August 20, 2021 during the ruling of the BBI appeal case. [Collins Kweyu, Standard]

As a further blow to the BBI, the judges ruled that the IEBC lacked quorum to undertake signature verification in support of the BBI and approve the draft referendum Bill, and that the commission could not proceed with the referendum without carrying out continuous voter registration.

They added that at the time of the BBI launch, there was no legislative framework to govern collection and verification of signatures.

“We uphold the findings that the IEBC does not have the required quorum to conduct its functions. The verification of signatures in support of the BBI done by the commission was also illegal, since they were done without quorum and appropriate legislation,” ruled the court.

They also ruled that the proposal to create additional 70 constituencies through the BBI was illegal and unconstitutional, since it interferes with the functions of the IEBC, which is the mandated body to create new constituencies.

On the issue of altering the draft referendum Bill, the Appellate Court ruled that the County Assemblies, National Assembly and the Senate had no powers to amend or change any proposals in the draft Bill as submitted by IEBC.

However, it was not all doom for the BBI proponents, as the court failed to fault the President for initiating the process.

Although it was a four versus three judges’ verdict, the court found that the BBI steering committee was legally founded.

Justices Musinga, Sichale, Tuiyott and Kairu were in agreement that the High Court erred in invalidating the task-force.

On the other hand, Justices Kiage, Nambuye and Okwengu held the minority voice by affirming that the task-force borne of the Handshake between the President and Raila was illegal.

Meanwhile, the judges were unanimous that the High Court orders condemning Uhuru ought to be reversed. They set aside High Court orders that the President had breached the Constitution for failing to grant him an opportunity to argue his case.

They also unanimously dismissed all the cross appeals, including one filed by the Kenya National Union of Nurses and another seeking to force the President and the BBI task-force to refund money used in the initiative.

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