The court in Milimani noted in a five-judge ruling that the entire process was unconstitutional because its promoters usurped the powers of ordinary citizens.
Judges Jairus Ngaah, George Odunga, and Teresia Matheka made their decision. “The president overstretched his powers when he proposed constitutional amendments outside his clear mandate,” Joel Ngugi and Chacha Mwita added.
The five judges found that the President appointed committee (BBI Steering Committee), which was established via gazette notice, rendered the entire process state-sponsored, while ruling in favor of eight petitioners who consolidated their case against the BBI process.
According to the judges, the BBI secretariat and steering committee were therefore unconstitutional organizations.
The judges ruled that the number of constituencies set out in the BBI Bill can be changed as long as the procedure is followed. In this case, they determined that the creation of new constituencies numbering in the hundreds is illegal.
According to them, the BBI Bill appears to direct the Independent Electoral and Boundaries Commission (IEBC) away from its constitutional mandate and disregards key due process in boundary delimitation, particularly public participation.
“Allocating the 70 constituencies by county disregards the constitutionally mandated criteria.” Judge Joel Ngugi read the decision, which stated:
They ruled that the IEBC did not have the quorum to confirm the authenticity of referendum signatures, and thus the commission’s decision was invalid, null, and void.
“The current amendment incorrectly asserts that the constitutional timelines for reviewing boundaries are suspended. It allows IEBC to start and finish delimitation outside of the timeline. They are clearly unconstitutional,” says the author. The five judges reached a decision.
The High Court’s decision comes just days after members of Parliament, both the Senate and the National Assembly, passed the Constitutional Amendment Bill 2020 by a wide margin, paving the way for a referendum.
The proponents of the BBI Bill are expected to appeal the decision. Attorney General Kihara Kariuki has already requested certified copies of the judgment in order to file an appeal notice.
