High Court Stops Reggae terms the BBI constitutional changes as an “Exercise in Futility”

The high court bench of 5 Kenyan judges when they delivered judgment on BBI last evening

By Jackson Kairu

A high court bench of 5 Kenyan judges last evening trashed the push by the political elite to amend the 2010 new constitution through the Building Bridges Initiative (BBI) report. The judges declared the efforts illegal terming it as an “exercise in futility”.
The move comes in the wake of a swift passage of the BBI motion in County assemblies, National assembly and the Senate which had cleared the way for a national referendum before the end of 2021 likely August-September. In a scathing ruling, the five High Court judges blocked the government-backed plan to make fundamental changes to the country’s constitution.

The judgement is arguably the most significant ruling by Kenyan courts since President Uhuru Kenyatta’s election win was nullified in 2017 by the supreme court chaired by the chief justice, now retired, David Maraga. The judges said the constitution amendment bill, popularly referred to as the Building Bridges Initiative (BBI), was irregular, illegal and unconstitutional.

President Kenyatta and opposition leader Raila Odinga exchange a symbolic handshake on March 9 2018 in a political truce that ended a bitter, deeply divisive 2017 presidential elections whose initial results handing Uhuru and his running mate deputy president William Ruto victory

President Kenyatta and his political nemesis-turned-ally, Raila Odinga, unveiled the initiative after a truce following the contentious 2017 election, which saw violent clashes erupt around the country. The debate has dominated Kenya’s politics for the past two years and is closely linked to the battle to succeed Mr Kenyatta, who is due to step down next year.

The two leaders said the initiative, which proposes, among others, the expansion of the executive arm of government, would make the country’s politics more inclusive. But critics say it is a selfish initiative to reward political dynasties, and that it will lead to a bloated parliament and executive which Kenya – a country already burdened by debt- cannot afford.

The BBI bill had been passed by the National Assembly and the Senate before Thursday’s court ruling and was awaiting Presidential assent, after which Kenyans would have headed to a referendum before next year’s elections. In a four-hour televised ruling, the judges said President Kenyatta had violated the constitution by initiating a process that ought to have been started by ordinary citizens.
They also ruled that the BBI constitutional committee, a body created by the president, was illegal, adding that Mr Kenyatta had failed the leadership and integrity test! They warned that the president could be sued in his personal capacity after he retires in August 2022.
The court also said that the five million signatures collected by the BBI task force to support the initiative did not make it a citizen-led process. “A popular initiative to amend the constitution can only be started by the people, not by the government,” the judges said.

The declaration creates the grounds for the president to be impeached, but it is unlikely that parliament, which had already passed the bill, would dare to challenge President Kenyatta.
The initiative proposes the creation of a prime minister post, at least 70 new constituencies, and an affirmative action clause that could create up to 300 new unelected members of parliament. This has sparked public outrage over the increased debt burden just to pay new officeholders.

President Kenyatta and Mr Odinga argue that the proposed constitutional changes will end the winner-take-all structure of Kenyan politics, which is often followed by deadly violence. But some argue that the current constitution which was promulgated in 2010 was a product of consensus and had served the country well despite relentless attempts by politicians to undermine it.
It was a product of the political crisis after the 2008 post-election violence which killed more than 1,500 people and forced hundreds of thousands from their homes, mainly in the vast fertile plains of Rift valley home to the Kalenjin tribe of late president Daniel Moi.
The BBI has dominated Kenyan politics for the past two years, so the ruling is a huge blow to Mr Kenyatta who had staked his legacy on passing the initiative.
So high were the stakes that MPs were allegedly given $1,000 (£700) bribes Kshs 108,000, to back it in parliament, a member of the national assembly revealed to the media in confidence.
Even though the attorney general has indicated that the government would appeal against the High Court ruling, legal observers say a favourable outcome is unlikely.
Mr Kenyatta has had a contentious relationship with the judiciary since the Supreme Court annulled his election four years ago, forcing a rerun. At the time, he warned that he would “fix” the courts.
He has ignored several court orders in the last few years and some have speculated that he might do the same after Thursday’s judgement.
The ruling is also a huge blow to Mr Odinga, a doyen of Kenyan politics for the last four decades and widely touted to have won the 2007 presidential election against Mwai Kibaki but denied victory.

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