The High Court on Thursday, May 13, 2021 ruled that the BBI Constitutional Amendment Bill 2020 is unconstitutional due to a number of illegalities within the bill and the entire process that came up with the bill.
The ruling came after a five-bench judge of the Milimani Law Courts had been tasked with debating as to whether the BBI petition would proceed to the referendum. The judges were to determine 17 questions raised on the petitions against the BBI process.
The ruling was made by Justice Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita.
During the ruling, the high court noted the following eleven reasons that led to their final ruling;
1. The Constitution’s basic structure doctrine is applicable in Kenya.
2. Basic structure protects certain fundamental aspects of the Constitution from amendment through the use of secondary constituted power or constituted power.
3. The essential features of the Constitution forming the basic structure can only be altered or modified by the people through their sovereign power and not merely through the referendum.
4. From a wholistic reading of the Constitution, its history and the context of the making of the Constitution, the basic structure of the Constitution consists of the foundation structure of theConstitution as provided in the preamble, the 18 chapters and six schedules of the Constitution.
5. The basic structure doctrine protects the foundation, structure and core value of the Constitution but leaves open certain positions as amendable through procedures outlined in Articles 255, 266 and 257 as long as they do not change the basic structure.
6. There are certain provisions in the Constitution insulated from any amendment at all because they are deemed to express categorical core values. These provisions are unamendable and cannot be changed through secondary constituted or constituted power.
7. The sovereign primary constituent power is only exercisable by the people after four sequential processes namely; civic education, public participation and collection of views, constituted assembly debate and referendum.
8. The power to amend the Constitution through referendum route under Article 257 is reserved for the private citizen (Wanjiku only), neither the President nor any state organ is permitted under our Constitution to initiate a constitutional amendment using the popular initiative route.
9. Under Article 143 (3) of the Constitution, the President can be sued in his or her personal capacity during his or her tenure in office, except for action or mission in respect of anything done or not done in the exercise of his or her powers under the Constitution.
10. The Constitution Amendment Bill 2020 which was developed by the BBI Steering Committee and is propagated by the BBI Secretariat is an initiative of the President. The President does not have a Constitutional mandate to initiate amendments through a popular initiative under Article 257.
11. To the extent that the BBI Steering Committee was employed by the President to initiate proposes to amend the Constitution contrary to Article 257, the BBI Steering Committee is an unconstitutional entity.