BBI Thrown Out- Court

The ruling came after a five-bench judge of the Milimani Law Courts had been tasked with debating as to whether the BBI petition would proceed to the referendum. The judges were to determine 17 questions raised on the petitions against the BBI process.

BBI Thrown Out- Court

The High Court has declared the Constitutional Amendment Bill 2020 as unconstitutional owing to a number of illegalities within the bill and the entire process that came up with the bill.

The ruling came after a five-bench judge of the Milimani Law Courts had been tasked with debating as to whether the BBI petition would proceed to the referendum stage. The judges were to determine 17 questions raised on the petitions against the BBI process.

The ruling was made by Justice Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita.

"The steering committee on the BBI was a brainchild of the President, it has no locus standi in promoting constitutional changes as indicated in Article 257 of the constitution, "Judge Ngaah stated.

The judges ruled that the BBI steering committee was not a popular initiative but rather a task force driven by President Uhuru Kenyatta.

"It is therefore clear as concluded above that the BBI taskforce, which was morphed into the steering committee, was the President's and not the people's initiative.

"It is also quite clear that what was presented as a popular initiative to amend the constitution is, in reality, the President's initiative which is contrary to Article 257 of the constitution," Judge Mwita noted.

The judge also noted that President Uhuru Kenyatta could not be sued during his tenure as the Head of State. 

"Criminal proceedings cannot be taken against the President during his tenure as far as legal proceedings are concerned," the judge stated.

The judges further faulted the 70 new constituencies' proposal terming it unconstitutional. They noted that the jurisdiction falls under the Independent Electoral and Boundaries Commission (IEBC).

"The BBI not only unlawfully takes over the functions of IEBC but also allocates constituencies in violation of constitutional principles set out in Article 89 which IEBC is obliged to adhere to in executing its mandate," judge Matheka stated.

The judges also declared all decisions conducted by the IEBC in regards to the BBI bill, including verification of signatures, null and void due to lack of a legal framework.

"It, therefore, follows that all the decisions made by the IEBC in relation to the propose Constitutional Amendment Bill were invalid, null, and void for lack of quorum," Judge Matheka stated.

IEBC was further barred from conducting any exercises regarding the BBI bill. The judges added that all parties which were promoting the bill will bear their own cost and no funds should be directed towards the project.

In summary:

  1. The Constitution's basic structure doctrine is applicable in Kenya.
  2. Basic structure protects certain fundamental aspects of the Constitution from amendment through the use of secondary constituted power or constituted power.
  3. The essential features of the Constitution forming the basic structure can only be altered or modified by the people through their sovereign power and not merely through the referendum. 
  4. From a wholistic reading of the Constitution, its history and the context of the making of the Constitution, the basic structure of the Constitution consists of the foundation structure of theConstitution as provided in the preamble, the 18 chapters and six schedules of the Constitution. 
  5. The basic structure doctrine protects the foundation, structure and core value of the Constitution but leaves open certain positions as amendable through procedures outlined in Articles 255, 266 and 257 as long as they do not change the basic structure.
  6. There are certain provisions in the Constitution insulated from any amendment at all because they are deemed to express categorical core values. These provisions are unamendable and cannot be changed through secondary constituted or constituted power.