End of reggae: Court of Appeal declares BBI unconstitutional

The Court of Appeal on Friday upheld a ruling by the Kenyan High Court that declared the Building Bridges Initiative (BBI) constitutional amendments unconstitutional.

The BBI bill, popularly dubbed “the reggae” by one of its promoters and former Prime Minister Raila Odinga, was halted by a 7-judge bench. 

The ruling, which lasted the better part of the day, saw each of the seven judges read their own verdict.

The seven appellate court judges were: Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott. 

The Court ruled by a vote of 5  that the Basic Structure Doctrine applies to the Kenyan Constitution.

Justices Musinga, Gatembu, Kiage, Okwengu, and Tuiyot upheld the High Court’s decision, while Justices Nambuye and Shichale dissented.

A majority the judges ruled that the President cannot initiate Constitutional change through popular initiative because he does not fall under category of the ‘general public’.

“Popular initiative is citizen-conceived and driven,” Justice Patrick Kiage ruled on Friday “It must be initiated by the ‘common mwananchi’, not the President,”

According to Justice Kiage, the President was at liberty use the Parliamentary initiative through his political party.

The appellate court also ruled that President Uhuru Kenyatta violated the Constitution by initiating the constitutional amendment.

The BBI Steering Committee which was constituted by the Head of State was also declared unconstitutional and unlawful.

The issue of public participation also arose, with Judge Patrick Kiage saying that some members of the County Assembly passed the Bill without the requisite public participation. 

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

Another premise Bill’s collapse was that MP Junet Mohamed, who claimed to be one of the promoters, is a State Officer and thus ineligible to use the popular initiative route.

“BBI Secretariat was not promoter of the BBI; the President was. Junet Mohamed wasn’t also qualified to use popular initiative route because he, being an MP, is a State officer,” Justice Hannah Okwengu ruled on Friday. 

During the ruling, the court also issued a permanent injunction, barring the IEBC from conducting a referendum on the Constitution Amendment Bill 2020 (BBI).