BBI: Push for more constituencies illegal, Supreme Court rules
The judges, however, gave differing opinions on whether there was adequate public participation and whether it was the work of the electoral commission to ensure that it took place.
The push by the promoters of BBI to create 70 more constituencies was illegal, the Supreme Court judges said.
In a unanimous decision, the top court judges agreed with the High Court and the Court of Appeal that the task of delimiting constituencies, reviewing their names and boundaries is assigned to the Independent Electoral and Boundaries Commission (IEBC).
The judges ruled that the second schedule to the Amendment Bill was unconstitutional in so far as it purported to pre-determine the allocation of 70 constituencies.
The judges, however, gave differing opinions on whether there was adequate public participation and whether it was the work of the electoral commission to ensure that it took place.
Those opposed to the creation of the 70 constituencies argued that the move was not only in violation of Article 89 of the Constitution, but that it also violated the principles, procedures and safeguards for the delimitation of electoral units, set out in the said article.
Public participation
“There was no evidence of deliberations or public participation on the change of the Bill to add the second schedule,” Chief Justice Martha Koome said.
The CJ, however, said there was no regulation for IEBC to ensure BBI promoters complied with public participation before determining whether the Bill met the constitutional requirements before transmitting it to county assemblies.
Justice Njoki Ndung’u agreed with the CJ, stating that there was no obligation on the part of IEBC to ensure that the promoters complied with the public participation requirement.
Justice Isaac Lenaola said it was difficult to determine whether there was adequate public participation on the BBI Bill because the process was at some point stopped by the court.
“I cannot find reason to fault either IEBC or initiators or promoters of the Bill with the exception of the second schedule, which I have found to be unconstitutional for, inter-alia, lack of public participation.”
For his part, Justice William Ouko stated that the burden of showing that there was no public participation lay with those who made the claims.
On whether the referendum should have single or multiple questions, the Supreme Court judges were unanimous, saying they would not delve into the matter because it never reached the stage where court should have been called to determine the matter.
“The Bill did not go beyond IEBC. Engaging in a discussion on that matter is a waste of the precious judicial time,” Deputy Chief Justice Philomena Mwilu said.
