Courts have dealt President Uhuru Kenyatta and ODM party leader Raila Odinga another blow after declaring the Building Bridges Initiative Constitutional Amendment Bill (2020) illegal.
In the judgment on Friday, the Court of Appeal upheld the decision of the High Court to find the three-year quest by President Kenyatta and Mr Odinga to amend the Constitution through the BBI as unconstitutional.
The process started in March 2018 following a political truce between the two leaders.
The judgment, in which the second highest court was heavily critical of President Kenyatta and the Independent Electoral and Boundaries Commission, stated that the BBI bill was unconstitutional and usurped the people's sovereign power.
The seven-judge bench also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum. The Bill had already been approved by parliament.
The judges also upheld the High Court's finding that the President has no authority to promote amendment of the Constitution through a Popular Initiative and that he can be sued in respect to his actions or omissions in the constitution.
"The popular initiative cannot be used by the government or the people's representatives. Popular initiative is for ordinary Kenyans," said the judges.
The judges also threw out contentions by the government and the BBI secretariat that the Kenya's Constitution does not have a basic structure.
"Civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution," said the judges.
They held that the popular initiative cannot be used by the government or the people's representatives.
"The President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution," stated the court.
Promote BBI bill
They stressed that President Kenyatta was the promoter of the process as they dashed claims that Suna East MP Junet Mohammed and former Dagoretti South MP Dennis Waweru were the promoters of BBI bill. Further, that BBI task force and the steering committee had no capacity to promote the BBI bill.
"No nexus was established between the BBI process and the Secretariat chairpersons Junet Mohammed and Dennis Waweru. In any case Mr Mohamed is an MP, hence not qualified to promote the BBI bill as a popular initiative. The Bill was executive driven, the promoter was the President," the court said.
In the judgment, the judges also threw out contentions by the government and the BBI secretariat that the Kenya's Constitution does not have a basic structure.
"The basic structure of the Constitution can only be altered through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum," said the court.
It was also found that the IEBC does not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification 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.
President Kenyatta partially won after the court set aside declarations made by the High Court against him.
The appellate court overturned the High Court declaration that the President had contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.