A seven-bench court on Thursday, March 31, upheld a decision by the High Court and the Court of Appeal that sought to amend the Constitution of Kenya 2010.
By the time of publishing this article, five of the seven bench judges had upheld a decision by the High Court and Court of Appeal that the President cannot initiate a popular initiative.
Promoters of the BBI needed four judges to overturn the entire findings of the lower courts.
While terming the BBI as unconstitutional, illegal, null, and void, the bench ruled that the President cannot initiate constitutional changes.
While endorsing the findings of the High Court and the Appellate Court, Chief Justice Martha Koome argued that President Kenyatta overstepped his mandate when he initiated changes to the Constitution through the popular initiative route.
She further ruled that public participation was inadequate during the roll-out of BBI changes in regard to boundaries delimitation with the view to creating 70 new constituencies.
“I endorse the findings of the two superior courts that the President ought not to be a player and an umpire in the amendment process,” she said.
On his part, Justice William Ouko ruled that popular initiative can only be carried out by the people and not by the President.
Ouko said although the promoters of the bill Dennis Waweru and Junet Mohamed attempted to conceal the origin of BBI, its DNA, ancestry, great grandmother, and grandfather are all known.
“The president commenced and spearheaded the process and only passed the baton to the two co-chairs very late in the day, he cannot act as an ordinary citizen,” he ruled.
The High Court nullified the initiative on May 14, 2021, in a scathing ruling, a judgment that was upheld by the Court of Appeal on August 25, 2021.
The initiative was a constitutional review process championed by the head of state and the opposition leader to ‘cure the country’s winner-takes-all syndrome’.