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The final fall: BBI Bill Unconstitutional, says Supreme Court

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Kenya’s Supreme Court – the court of last resort – has nullified of the Constitutional Amendment Bill, (2020) dubbed the Building Bridges Initiative (BBI).

Kenya’s Chief Justice Martha Koome on Thursday, March 31 ruled that public participation was inadequate during the roll-out of BBI changes in regard to boundaries delimitation.

She said, in her verdict, that the constitutional amendment process, in this regard, wasn’t satisfactory.

The Chief Justice also ruled that President Kenyatta overstepped his mandate when he initiated changes to the Constitution through the popular initiative route.

This BBI verdict, which is the last in the lawsuit stream, deals a blow to President Uhuru Kenyatta and Raila Odinga’s pet project, which was meant to expand the Executive and introduce the posts of a prime minister and two deputy prime ministers.

Had the Bill passed, Kenya would have had 70 new constituencies in the upcoming general election and a higher number of female lawmakers in the bicameral Houses of Parliament.

Six out seven judges ruled that the President cannot lead a popul​ar initiative to amend the Constitution.

Three judges held that President Uhuru Kenyatta was a promoter of the BBI proposed amendments. Two judges said President Kenyatta was not involved. two judges abstained from that vote.

The seven-judge bench is led by Chief Justice Martha Koome. Other judges in the bench include Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Below is a summary of the CJ’s verdict on the different contentious issues, which ended in the vicious Supreme Court battle:

 

Basic structure doctrine

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High Court and Court of Appeal erred by “finding fourth Judiciary-created pathway for amending the Constitution”; said applicability of basic structure doctrine should be flexible.

IEBC role in delimitation

BBI proponents overstepped their mandate by allocating and apportioning 70 new constituencies;  held that only IEBC has the power to do so.

Uhuru’s popular initiative

President Uhuru Kenyatta did not have the right to use popular initiative route to initiate changes to the Constitution; stated that the option, which is available only to mwananchi, excludes Legislature and Executive.

Public participation

Public participation was inadequate during the roll-out of BBI changes, says the constitutional amendment process, in this regard, wasn’t satisfactory. This was in regard to boundaries delimitation.

Civil proceedings against sitting president

Civil proceedings cannot be instituted against a sitting president, and that the lower courts engaged in “judicial overreach”.

IEBC quorum

The electoral board had a quorum when it undertook the verification of signatures in support of the amendment Bill. The IEBC had three commissioners at the time.

 

Raila Odinga is on the record saying “reggae (BBI) is on half-time”, and that he will, in future, reintroduce the push to change the Constitution.

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