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Supreme Court declares BBI as unconstitutional

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The Supreme Court has today nullified the Constitutional Amendment Bill, (2020) dubbed the Building Bridges Initiative (BBI)

The seven-judge bench led by Chief Justice Martha Koome in a1,500 page judgment ruled that the quest to change Kenya’s Constitution was not procedural in accordance with the constitution. Other judges in the bench include Deputy Chief Justice Philomena Mwilu, Justices Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola and Justice William Ouko.

Six out of seven judges ruled that the President cannot lead a popular initiative to amend the Constitution while three judges held that President Uhuru Kenyatta was a promoter of the BBI proposed amendments. Two judges said President Kenyatta was not involved. two judges abstained from that vote.

Chief Justice Koome, Justices William Ouko, Isaac Lenaola, Smokin Wanjala, Mohamed Ibrahim in their statements, said the popular initiative route is reserved to the Wanjiku, and not holders of the offices in the Executive or the Legislature.

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“The popular initiative is supposed to be triggered from below; at the initiative of the citizenry, as opposed to representative institutions. Popular initiative is a means of direct democracy, and indeed, direct democracy can only be exercised by the people, and not their representative,” said the Chief Justice.

Six out of the seven judges ruled that the basic structure doctrine does not apply in Kenya while Justice Mohamed Ibrahim dissented. “The basic structure doctrine can only be deduced by our constitutional past. It is unnecessary to import basic structure doctrine to Kenya.” said Justice Njoki Ndung’u and was echoed by Deputy Chief Justice Philomena Mwilu.

On whether the IEBC was properly constituted during verification of signatures, majority of the judges found that the electoral board had enough commissioners to oversee the exercise however, Justice Mohamed Ibrahim differed with the other judges.

This BBI verdict in the supreme court has dealt a big blow to President Uhuru Kenyatta and Raila Odinga’s who were the chief promoters and advocators of the initiative. This would have seen the country have 70 new constituencies in the upcoming general election and a higher number of female lawmakers in the bicameral Houses of Parliament among other amendments that had been prescribed on the report had it seen the light of the day.

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