Kenya: Court of Appeal throws out BBI appeal

By Samuel Ouma

President Uhuru Kenyatta and opposition leader Raila Odinga signing the BBI report on November 22, 2020. Photo Courtesy

The Court of Appeal has upheld the Kenya High Court ruling that declared the push to amend the country’s Constitution through the Building Bridges Initiative (BBI) null and void.

The seven-bench judge said the promoters of the BBI did not follow the law when initiating it.

Judges read their own verdict that lasted on the better part of Friday, August 20, 2021.

The seven judges were: Court of Appeal President Daniel Musinga, Justices Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye, and Francis Tuiyo.

Justices Daniel Musinga (President), Patrick Kiage, Francis Tuiyott, Gatembu Kairu, and Hannah Okwengu, and Roselyn Nambuye supported the May 13 ruling by the High Court judges while Fatuma Sichale dissented.

The judges said President Uhuru Kenyatta was the initiator of the BillBill instead of ordinary citizens. They noted that the Constitution of Kenya has a basic structure, which should be protected, and that proposals to change the structure must attract overwhelming support by public members.

They also ruled that President Uhuru Kenyatta violated the Constitution by initiating the constitutional amendment.

BBI steering committee that President Kenyatta appointed was also declared unlawful.

“The BBI Steering Committee had no constitutional mandate under Article 257 of the Constitution. This was a move initiated by the political elite, not by the people of Kenya,” ruled Justice Musinga.

The appellate also ruled that adequate public participation was not conducted. Judge Patrick Kiage said Members of the County Assembly passed the BillBill without carrying out public participation.

“County Assemblies did not involve resident-citizens in their counties. Some Assemblies ‘passed the BillBill in a matter of days’ without involving the citizens,” said Judge Kiage.

Judge Kiage added that County assemblies rushed the process because of incentives such as car grants as if they wanted to show gratitude.

Justices Kairu Gatembu and Fatuma Sichale agreed with High Court’s ruling that President Kenyatta can be sued in his official capacity for violating Constitution.

Following the ruling, Raila Odinga said, ”It is likely that today’s Court of Appeal ruling 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.”

The AU envoy was one of the appellants besides President Kenyatta, Independent Electoral and Boundaries Commission (IEBC), and BBI Secretariat.

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