It is No for President Kenyatta, as Supreme Court declares BBI unconstitutional

President Uhuru Kenyatta and his handshake partner Raila Odinga have suffered a major blow after the Supreme Court declared the Constitution of Kenya (amendment) Bill 2020 is unconstitutional.

The Famous ‘BBI Bill’ was a president-led constitutional amendment that had the potential to give direction on the country’s future politics and a better tool for Kenyatta to participate in the August 9, general election by expanding the legislature and the executive.

The seven-judge bench led by Chief Justice Martha Koome gave their ruling on seven issues framed during the appeal hearings.

The seven issues include;
– Basic structure doctrine and whether it applies in Kenya.

– Whether the President can initiate a popular initiative law review.

– Whether the President has immunity against civil proceedings in court in his own capacity.

– Whether IEBC was legally constituted when it processed the BBI Bill.

-Determine the legality of the proposed 70 new constituencies.

-The threshold of public participation and if the BBI Bill complied.

– Whether a referendum ballot paper with multiple amendments should contain multiple questions.

The highest court in the land ruled that the BBI initiative was unconstitutional because the law does not allow for a sitting President to initiate amendments to the constitution.

“The President cannot initiate popular amendment under Article 255. I, however, disagree narrowly with the Chief Justice that on the BBI secretariat part, there is no place I have found the role of the President,” said Judge Isaac Lenaola,

“The High Court and Court of Appeal erred by concluding that civil proceedings can be instituted against the President during his tenure of office,” said Judge William Ouko

The courts further stated that the President has immunity against civil proceedings in Court. Further, the IEBC was vindicated by the bench, which ruled that it had a quorum during the verification of signatures.

The Amendment Bill, which was at the core of the dispute with all the courts of the lands as per the description of CJ Martha Koome would have created an additional 70 constituencies.

The judges ruled that the 2nd schedule of the bill on creating the additional constituencies did not have proper public participation, thus, rendering it unconstitutional.

“The transmission of the BBI Bill to the bicameral Parliament and the County Assemblies is evidence of public participation.

There was reasonable public participation in the BBI Bill except for the second schedule, a late amendment.

The 2nd schedule of the Amendment Bill is unconstitutional, for lack of reasonable public participation,” she ruled.

President Uhuru Kenyatta and Azimio La Umoja presidential candidate Raila Odinga are yet to give their statement regarding the recent ruling. Odinga, who was in Homabay, said that his party would give a proper statement over the ruling of the BBI in the subsequent days.

The judges who constitute the Supreme Court are Deputy CJ Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.