BBI Ruling: What It Will Take To Impeach Uhuru

Lawyer Charles Kanjama had stated that President Kenyatta can now be impeached, unless the ruling by the High Court is set aside.

BBI Ruling: What It Will Take To Impeach Uhuru

Lawyers have argued that the ruling by the High Court that declared the Constitution Amendment Bill 2020 also known as the Building Bridges Initiative (BBI) null and void opens the door for Kenyans to initiate the impeachment of President Uhuru Kenyatta.

On Thursday, May 13, 2021, the High Court had determined that the Head of State had contravened Chapter 6, Article 73 (1) (a) (i) of the Constitution by initiating the BBI process in contrast to its provisions on amending it.

Lawyer Charles Kanjama had stated that President Kenyatta can now be impeached, unless the ruling by the High Court is set aside.

President Uhuru Kenyatta with ODM leader Raila Odinga and Deputy President William Ruto during a past BBI event. /FILE

"Any MP who wants to impeach the president has the basis to institute the impeachment motion. Such a motion is strengthened by the president's failure to appoint 41 judges. There have been grounds of impeaching President Kenyatta even before," Kanjama stated.

Lawyer Elias Mutuma, who was part of the team that argued the case, defended the ruling by the five-judge bench, labelling it as correct.

"The president took an oath of office and swore to uphold and defend the constitution. He is bound by oath and is liable for any breach," he said.

An MP backed by a third of the MPs could initiate the impeachment process on grounds of gross violation of the Constitution or any other law. To impeach the president, the motion must be supported by two thirds of the house.

Solicitor General Ken Ogeto however disagreed with the findings, stating that the ruling on President Kenyatta was erroneous on the court's part and provides grounds for an appeal.

"It is in the public interest that pending the filing of the Appeal and to enable him to exercise his right of appeal, an interim stay of execution of the judgment be hereby stayed.

“The Hon. AG is dissatisfied with the judgment in its entirety, and he has firm instructions to move to the court of Appeal to challenge this decision. The public interest is a serious consideration in considering a relief in a matter such as this. I urge your honor to grant a stay of your judgment,” Ogeto’s application for appeal read in part.

On Thursday, a five-judge bench consisting of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita declared the BBI process illegal, arguing that President Uhuru Kenyatta cannot initiate a popular initiative.

According to the court, the BBI task force was a matter of a presidential task force and not an initiative favouring the people.

“It is our finding that popular initiative is a power reserved for Wanjiku neither the president or any other state organ can utilize article 257 to amend the constitution.

“President cannot purport to directly initiate a constitutional amendment. He isn’t part of parliament. He has no power under the constitution to initiate changes under the constitution since parliament is the only state organ that can consider the effecting of constitutional changes. The president is not permitted to amend the constitution using popular initiative,” the court ruled.

The High Court judges also accused President Uhuru Kenyatta of failing to respect, uphold and safeguard the Constitution and to that extent, falling short of the leadership and integrity threshold set in the Constitution. According to the judges, Uhuru was the initiator of the bill instead of a regular citizen, a move that contravened the laws as the President does not have a Constitutional mandate to initiate amendments through a popular initiative. 

The judged blew open doors for lawsuits against Uhuru after declaring that the President can be sued in his or her personal capacity during his or her tenure in office, for anything done contrary to the Constitution. 

The five High Court judges during the BBI ruling on Thursday, May 13. /THE STAR