The High Court in Nairobi has dealt a severe blow to the Constitutional of Kenya (Amendment) Bill 2020.
A five-judge bench comprising of George Odunga, Jairus Ngaah, Chacha Mwita, Janet Mulwa and Joel Ngugi on Thursday evening effectively killed the Amendment process, popularly known as BBI.
In a hard-hitting ruling read for over five hours, the process and content of the document were declared as unconstitutional. So was the BBI steering committee, the actions of IEBC in verification of signatures and the composition of the Commission.
The court also unanimously ruled that President Uhuru Kenyatta acted outside his powers by initiating the process of amending the Constitution. “President cannot be an initiator of and an umpire in amendment of the Constitution,” said the court.
The court poured cold water on the assumption that BBI was meant to bring national unity, pointing out the fact that the process of Constitutional amendment was being fronted by an individual -the President- to which the steering committee was answerable to.
“While the effort 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 said.
The judges added: “In reality, BBI was the 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.”
There were nine petitions in total. The petitions focused on the process and whether the President could initiate changes to the basic structure of the Constitution.