This archive report was first published on 20 August 2021.
The Court of Appeal has dealt a significant blow to President Uhuru Kenyatta's efforts to reform the Constitution through the Building Bridges Initiative (BBI). In a ruling delivered on August 20, 2021, the court declared that the President's attempt to change the Constitution through the BBI process was unconstitutional.
A majority of the judges ruled that the President is not legally allowed to initiate changes to the Constitution through the popular initiative route, which is reserved for the common citizen. The ruling was a major setback for the BBI proponents, who had argued that the President had the power to initiate constitutional reforms.
The court also ruled that the BBI Steering Committee had no constitutional mandate to initiate changes through the popular initiative route. Furthermore, the judges found that adequate public participation was not conducted in the lead-up to the would-be referendum, and that the BBI proponents did not consult the Independent Electoral and Boundaries Commission (IEBC) while proposing an increase in the number of constituencies from 290 to 360.
Appellate court president Daniel Musinga said that a rigorous constitutional change procedure, similar to that used to adopt the 2010 Constitution, should have been observed while pushing the BBI reforms. He also ruled that the BBI Steering Committee had no constitutional mandate to initiate changes through the popular initiative route.
“Although more than a million voters signed in support of the amendment Bill, it was not demonstrated that the exercise was conducted transparently,” Musinga said.
Below is a summary of how each judge ruled:
- Fatumah Sichale: Civil proceedings were initiated against the President without giving him the right to be heard. The IEBC was properly constituted during BBI signatures verification, and the IEBC had the right legal framework to oversee a referendum.
- Francis Tuiyott: The IEBC was improperly constituted during BBI signatures verification.
- Geoffrey Gateru: The President cannot initiate constitutional change through the popular initiative route. The President does not fall under the category of 'general public.'
- Patrick Kania: The basic structure doctrine applies in Kenya. The Constitution contains a core of implicitly unamendable principles that give it its identity. The people were not mere observers in the making of the 2010 Constitution. Amendments proposed in BBI were 'so far-reaching in character, scope, and content' that they were effectively dismembering the Constitution.
- Hannah Okwengu: The President cannot use the popular initiative to recommend changes to the Constitution. No evidence was tabled in court that there was adequate public participation. The BBI process was Constitutionally unsustainable due to lack of public participation.
- Roselyn Nambuye: The basic structure of the Constitution does not exist. The BBI's proposal to increase the number of constituencies from 290 to 360 violates procedures of delimitation of electoral units and usurps the IEBC's role.
