The High Court on Thursday evening declared the Building Bridges Initiative (BBI) illegal, null and void, dealing a death blow to President Uhuru Kenyatta and ODM party leader Raila Odinga’s four-years-long efforts to change the constitution.
The court, in a bold, hard-hitting judgment, declared that President Uhuru Kenyatta acted in excess of his powers when he formed and initiated the BBI constitutional amendment process.
The five-judge bench also declared that the President violated Chapter six of the constitution on Leadership and Integrity, for attempting to change the Constitution through the unconstitutional process of the BBI.
The shock judgement, delivered at about 9.30pm, pointed out multiple legal blunders that President Kenyatta committed in his desire for constitutional reforms. Other mistakes were committed by the Independent Electoral and Boundaries Commission (IEBC).
The court issued a permanent injunction against the IEBC, stopping the electoral agency from organising and conducting a referendum until proper voter registration and education is done.
The mistakes effectively made the BBI process, which started with a political truce between the President and Mr Odinga, in March 2018, a total flop-- barring any successful appeal.
The constitutional review plan and political truce, popularly known as the 'handshake', was later embraced by other opposition leaders but split the ruling Jubilee Party into two factions -one allied to the President and the other to his deputy William Ruto.
“There is a God in heaven who loves Kenya immeasurably. May God’s name be praised forever,” DP Ruto, who has been opposed to the BBI process, wrote on his official Twitter handle shortly after the judgement.
The flopped desires of the President to amend the constitution through the BBI also had political casualties in his Jubilee party, since politicians such Garissa Town MP and Elgeyo Marakwet senator Aden Duale and Kipchumba Murkomen respectively lost their House leadership positions for their opposition to the plans.
The High Court, in a judgement that was read virtually for five-and-half hours, said the 14-member BBI taskforce and the steering committee led by former Garissa senator Yusuf Haji was an illegal entity as it was unknown to the law. The judgment, running to 743 paragraphs, was so long that the five judges read it in turns amid gasps of water and technical hitches.
The bench, led by justice Prof Joel Ngugi, said the President made a fatal legal mistake in attempting to amend the constitution through a popular initiative, an avenue that is not available to him.
He should have used parliamentary initiative by petitioning the National Assembly, through the Attorney General, to consider the desired amendments, the court ruled.
The court stated there is no other permissible avenue of amending the constitution except parliamentary or popular initiatives.
They described the BBI process as a Presidential initiative disguised as a constitutional popular initiative, and allowing it to be sustained would amount to having the President as promoter and referee of his own initiative.
"The President cannot be an initiator of and an umpire in amendment of the constitution," said the court, adding that the BBI was muddled by conflict of interest.
The judges held that "the president overstretched his powers when he proposed amendments to the constitution outside his clear mandate".
To those who argued that the President was acting in person and was promoting national unity through the nine-points contained in the BBI document, the court said the argument is betrayed by the fact that the BBI taskforce was formed by the President and was answering to him.
"In reality, BBI was president's initiative which is contrary to article 257 of the constitution. The taskforce that morphed to a steering committee was an unlawful and unconstitutional outfit. It was invalid from the beginning," said the judges.
They also poured cold water on arguments that retired President Mwai Kibaki initiated constitutional reforms in 2005 and 2010 during his tenure. The judges noted that Kibaki did so under the old constitution.
In the current constitution, they said it provides who can initiate the amendments through popular initiative and a sitting President, Executive or a State organ is not among them. The judges held that amendment of the Constitution by popular initiative can only be initiated by a private citizen or a group of private citizens, but not the government.
The BBI promoters told court that the President was exercising his constitutional mandate and authority when establishing the BBI process.
But the court said the President failed to safeguard the constitution and fell short of leadership and integrity.
"While efforts of uniting the country is to be lauded, in his responsibilities he cannot initiate any move to amend the constitution contrary to the constitution. It is not in his power," the court held.
They added that since the process is void ab initio (from the beginning), whatever the process aimed to achieve is no legal consequences.
The court also held that President Uhuru Kenyatta (as a sitting president) can be sued personally in civil proceedings for his actions or inactions or for violating the constitution. He is only exempted from criminal proceedings during his tenure.
It was held that in the BBI process the President violated Article 131 (2) (c) of the Constitution and that he failed to uphold and safeguard the Constitution.
According to the court, the President ought to have entered appearance in the petition because it was a civil case, instead of the Attorney General responding on his behalf. They noted that President Kenyatta had been listed as a defendant and remained a party to the case up to the end.
In regard to public participation, the court said the exercise was constitutionally flawed because the promoters of the BBI failed to involve Kenyans.
The promoters failed to supply Kenyans with copies of the proposed amendments so that they can make informed decisions. People with disabilities such as sight and hearing impairments were also excluded.
The court compared the BBI process with the making of 2010 constitution, where the committee that was undertaking the latter received more than 26,000 memorandums of divergent views from the public. The committee that earlier attempted constitutional reforms received over 36,000 memorandums.
"Voters needed the copies in languages that they understand. The only copy annexed here was in English. No efforts made by the committee to make copies available for the public. People must be involved in legislative process," said judges.
It was also held that the Independent and Electoral Commission (IEBC) needed to have subjected the Constitutional Amendment Bill to legal tests and public participation before taking it.
The court also said the referendum process was started when there was no legislative framework for the conduct of a referendum in the country.
Another legal blunder
The judges said it is necessary that the legislation be put in place for any such amendment to the Constitution.
Another legal blunder was that IEBC lacked the statutory quorum of five members to receive the constitutional amendment bill and to conduct a referendum, hence it is unlawfully constituted.
The court said the Wafula Chebukati-led IEBC did not have the capacity to verify the supporting signatures for the BBI Bill. The decisions made by the Commission on the Bill were invalid, null and void for want of quorum.
Further, that the IEBC took steps of holding a referendum without conducting voter education and voter registration exercise.
In regard to creation of the proposed 70 parliamentary constituencies and the distribution of the same, the court said the same is unconstitutional. The judges said it is invalid, null and void because delimitation of boundaries is the function of IEBC under Article 89 of The Constitution.
There was also no law to guide county assemblies on what to do with views collected before the Bill is considered.
The court also held that both the National and County Assemblies have no powers to amend a constitutional amendment bill generated through a popular initiative.
"Amending so as to incorporate public views defeats the purpose of the Bill. The Assemblies cannot hijack the process and amend. It would lose meaning of a popular initiative. The public views should be on guiding the assemblies. They should swallow or spit the Bill wholly," ruled the court.