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High Court Shoots Down the BBI

The High Court of Kenya has today shot down the Constitutional Amendment Bill of 2020, popularly known as the Building Bridges Initiative or BBI. The High Court has deemed the entire BBI process as unconstitutional and flawed in a case filed by economist David Ndii and other opponents of the bill. More starkly, the court has ruled that the president has no mandate to initiate a constitutional amendment by popular vote. The court has declared that the president, by doing so, has gone against the constitution and can be sued in a personal capacity for that. The High Court ruling has also declared the Independent Electoral Boundaries Commission, IEBC, as lacking quorum to issue and run a referendum. To top it all off, the 5 judge bench has ruled that matters such as the delimitation of constituencies are untouchable and are regarded as unchangeable within the constitution. According to the ruling, these can only be changed by a primary vote and not a popular vote. The BBI Secretariat has also been ruled to be unconstitutional. The secretariat has been termed as illegal and should not be allocated funds whatsoever. 

BBI Derailed

Today’s ruling by the High Court comes as a huge blow to the BBI. The BBI had passed in both Parliament and the Senate. It was a very rush process that was done as a way to avert constitutional requirements. One such requirement is that there are no changes to electoral-related matters, such as constituencies, 12 months before an election. The 5 judge bench has ruled that the entire BBI process was unconstitutional, flawed, and even in some aspects, fraudulent. The court determined that the IEBC, out of lacking quorum, has no legal or constitutional power to undertake a constitutional amendment process such as a referendum, least of all involving changes to core constitutional aspects such as the number of constituencies. As such, all determinations or activities conducted by the IEBC regarding the BBI have been termed null and void. The court also shot down the IEBC’s verification of signatures as unconstitutional. Without a seven-member committee, the IEBC lacks a quorum and cannot conduct a verification of signatures or any other constitutional mandate. 

High Court Shoots Down the BBI
Uhuru Kenyatta and Raila Odinga during the Launch of the Signature Collection for the BBI.

An Unconstitutional Bill

The High Court has ruled that for a constitutional amendment to be carried out, it needs to entail four core aspects: civic education, public participation, parliamentary assent, and a referendum. That said, each step of this 4-part process should be conducted constitutionally and in line with all parts and requirements of the constitution. According to the court, such an amendment can also not alter other parts of the constitution indirectly. An example of this is when a proposed amendment leads to changes in other parts of the constitution. The BBI has been a flawed and rushed process. In the eyes of many Kenyans, it was the president’s project that he and his allies forcefully pushed down Kenyans’ throats. It was unneeded, unwarranted, and gravely consequential to how robust our constitution is. Despite stark opposition, the process has just reached the stage where it only required presidential assent. It is a pity that something so unconstitutional could pass all initial stages and get to the final one without any constitutional protections to ensure constitutionality and integrity. We are slowly becoming a nation of degenerative politics.

Read The Wheelbarrow Debate article below.

The Wheelbarrow Debate

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Almost Through

After being voted through by parliament and the senate, the BBI was set to be delivered to the president for presidential assent. On assenting, the IEBC would then have 90 days to conduct a referendum. According to the high court, there can be no changes to such a bill in the parliament or senate, which was strictly adhered to by the speakers of both houses. However, their sticking to a no-changes policy was, at the time, a move of self-interest and was done out of executive influence. Even on passing, the BBI was marred with controversy, with some members of parliament alleging that the members of both houses had been bribed and incentivized to pass it through. It is quite unnerving to think that the bill’s proponents, including the President, could go to such illegal extents to see it pass.

High Court Shoots Down the BBI
Uhuru Kenyatta and Raila Odinga during the Launch of the BBI.

No Presidential Mandate

The High Court today came out and stated very clearly that the president has no mandate to initiate and popularize a constitutional amendment. The court also declared it illegal to allocate funds to such a referendum as it is, in its very essence, unconstitutional and illegal. Again, despite these being times of a crisis with the looming COVID-19 pandemic, the bill’s proponents were willing to spend billions to conduct an unnecessary referendum. The BBI was staged as plunder of power that used the allocation of constituencies as a tool to either punish or reward political allies. The new constituencies and their sharing out was slated to be a way in which to exert influence and align political interests. It is so sad that each day that passes, our leaders behave like dictators and lead this nation as if it were a banana republic. 

Read The BBI Defeats Itself Article Below.

The BBI Defeats Itself

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Appealing the Ruling

The bill’s proponents can appeal the ruling by the High Court, but from a timelines perspective, it means that a referendum cannot be held on July 2021, as imagined. It also may take time to appeal the ruling, and as there cannot be changes to the constitution that affect the electoral process 12 months to an election, there may not be a referendum at all. In our own view, it was a huge waste of time, political noise, and money. It was an unneeded, unwarranted, and ill-fated move by the country’s political elites to enrich themselves further and allocate new positions to themselves and their political allies. It is such a shame that we, the people of Kenya, voted for and continue to be led and dissuaded by characters who care so little about us. We deserve better and should be very keen on how we vote come 2022. Kenya is a nation of nearly 50 million people. It belongs to all of us and not the few elites who only care about lining their pockets and being ‘kingpins.’ That is pure idiocy and backwardness that we hope will cease to exist in this nation. 

David Mania
David Maniahttp://maniaincnews.com
David Mania is an upcoming musician and blogger.
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