The Court of Appeal has upheld the High Court judgment that declared the constitution amendment bill, popularly referred to as the Building Bridges Initiative (BBI), unconstitutional, null and void.
In a ruling delivered on Friday, a seven-judge bench led by Court of Appeal President Daniel Musinga ruled that the process was illegal and unconstitutional.
Other members of the bench included Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
A majority of the judges ruled that the BBI process was not a popular initiative as it was promoted by President Uhuru Kenyatta in his capacity as the Head of State.
“County Assemblies did not involve resident-citizens in their counties. Some Assemblies ‘passed the Bill in a matter of days without involving the citizens,” Justice Kiage said.
President Kenyatta and his political nemesis-turned-ally, Raila Odinga, unveiled the initiative after striking a political truce on March 9, 2018, following a disputed 2017 presidential poll which caused unrest in some parts of the country.
The majority also ruled that the Basic Structure of the constitution is applicable in Kenya, further observing that it limits amendment power. Justice Sichale dissented.
Making his submissions, Justice Musinga said that any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment; it amounts to the dismemberment of the constitution.
Justice Sichale also differed with the majority who found out that the Independent Electoral and Boundaries Commission (IEBC) lacked a quorum to verify BBI signatures.
The Court of Appeal issued a permanent injunction barring the electoral commission from conducting a referendum or any other process touching on the amendment of the constitution through a popular initiative.
“A permanent injunction be and is hereby issued restraining IEBC from undertaking any processes required under Article 257(4) and (5) in respect of constitutional amendment bill 2020,” said Justice Daniel Musinga.
The Appellate Court judges, however, expunged part of the High Court orders including one that said that President Kenyatta had contravened Chapter Six of the Constitution.
Reacting to today’s judgment, Odinga indicated that he won’t challenge the decision at the Supreme Court.
“It is likely that this is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today. That is welcome, as the issues involved need to be deliberated upon to the fullest extent,” Odinga said moments before Musinga gave a summarised and final judgment.
“For us, as we have stated before, we shall engage only to the extent that circumstances will require. But we feel that we have to move on.”