President Uhuru Kenyatta and Orange Democratic Movement (ODM) leader Raila Odinga will rely on the powers of the highest court in the land, the Supreme Court of Kenya, to revive the Building Bridges Initiative (BBI) having been dismissed by two key courts in 2021.
The hearing of the BBI bill also termed the Constitutional Amendment Bill (BBI) 2021 will begin at the apex court on Tuesday, January 18 to determine whether the will by the President initiate changes to the Constitution by way of the popular initiative will be continued or not.
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The Court of Appeal on August 20, 2021, had unanimously ruled that President Kenyatta cannot initiate constitutional amendments on the basis of being the holder of the Executive Office of the President, and not a Wanjiku.
BBI Buried At Court of Appeal
The judges at the appellate court had delivered their final verdict on that day as follows:
Justice Okwengu: The president cannot use his executive power to initiate a constitutional process. Popular Initiative under Article 257 is a process began by the voter, not their representatives or the government.
Justice Roselyne Nambuye: I disagree with the High Court that the BBI task force and steering committee are illegal entities. The President cannot be faulted for initiating the BBI process. The task force was established to advise the President. The President acted within his mandate. The President should have engaged the government machinery or party to drive the recommendations of the task force forward through the parliamentary initiative.
Justice Hannah Okwengu: Constitutions are like human beings, they are never perfect. Constitutions respond to certain circumstances. Framers of the Constitution of Kenya recognised the need for development and provided for in article 259.
Justice Hannah Okwengu: Amendments of the Constitution can only be done within the constitutional boundaries. The Constitution has not identified any clause as unamendable or eternity but the amendment power is restricted and there is the procedural limitation to the exercise of the amendment power.
Justice Patrick Kiage: The president does not shoulder any obligation to initiate any constitutional changes. He takes office under and in accordance with the constitution and his duty is to obey and defend it in keeping with the oath of allegiance and not to change it.
Justice Kairu: The President’s participation in the process was not in his capacity as a private citizen, he was acting in an official capacity.
Justice Kairu: The power to make fundamental amendments to the Constitution belongs to the constituent or sovereign assembly, and the courts have the power to preserve that sovereign power and prohibit dismemberment of the Constitution.
Justice Sichale: The President cannot be a promoter of a popular initiative, says the President cannot be a ‘Wanjiku’.
Justice Sichale: There’s no clause in the 2010 Constitution that prohibits amendments but there’s an in-built mechanism that provides safeguards. I’m of the persuasion that the High Court erred in imposing another hurdle on the basis of an implied provision anchored in the spirit of an overarching theme of the Constitution.
Justice Sichale: Looking at the clear language in Chapter 16, there is provision for amendments and there is no need to look outside and impose the Basic structure. Framers of the Constitution balanced flexibility and rigidity. Balance has to be struck to avert abusive amendments.
Turnaround At The Supreme Court
Following the verdict, a section of proponents of the bill escalated the matter to the Supreme Court in a bid to overturn the ruling that was made by the lower courts. Attorney General Paul Kihara Kariuki had argued that the lower courts had not taken the rights of citizens into account while determining electoral boundaries by way of referendum.
The lower courts had ruled that the BBI proposal to create 70 new constituencies was deemed unconstitutional, a matter which will be taken into account during the showdown at the Supreme Court.
The AG also poked holes at the lower courts on whether the President can be sued in his acting capacity, arguing that on the hot seat, he is untouchable.
Raila, through submissions filed by Paul Mwangi together with the BBI Secretariat, had argued that the Court of Appeal blundered in finding that there was not enough public participation. The lawyer also argued that the Constitution is a fluid one, meaning that its basic structure could be changed, something the lower courts ruled otherwise.
Mwangi is also fighting the finding that the President was the promoter and the initiator of the BBI process.
The appellate court had also ruled that the Independent Electoral and Boundaries Commission (IEBC) had no quorum to carry out its business with regard to the proposed referendum exercise.
“The Independent Electoral and Boundaries Commission does not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification of whether the initiative as submitted by the Building Bridges Secretariat is supported by the requisite number of registered voters in accordance with Article 257(4) of the Constitution (Sichale, J.A. dissenting),” read the ruling in part.
The hearing will be spearheaded by Chief Justice Martha Koome, who will lead a seven-judge bench that will include her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko.
The appellants are confident of a turnaround in their fortunes, despite the bill, christened Reggae, risking a hat trick of dismissions. The bill was nullified by the High Court in May 2021 and the appellate court in August 2021.
AG Kihara will be the first appellant to begin his submissions tomorrow and will be followed by the BBI Secretariat, the Independent Electoral and Boundaries Commission (IEBC), The Senate, The National Assembly, and several County Assemblies.
The amendment bill was a product of the famous handshake between the President and Odinga in March 2018.