The High Court in Malindi has nullified passage of the BBI Bill by the Tana River assembly, declaring the decision unconstitutional for lack of public participation.
Judge Reuben Nyakundi on Monday declared the assembly’s decision as illegal as it did not follow due process. The county said participation was done via its website.
Forty-four counties passed the Bill—now only 43 without Tana River. It was rejected by Baringo, Elgeyo Marakwet and Nandi.
The judge ordered the speakers of both the National Assembly and the Senate to delete Tana River as one of the counties that passed the Bill.
The petition was filed by resident Abe Semi against the assembly and assembly speaker, while the speakers of the National Assembly and Senate were listed as interested parties.
The petitioner said assembly failed to carry out enough public participation prior to tabling and passing the Bill in the assembly.
In an affidavit, Semi said he became aware of the decision by the respondents to hold public hearings and receive memoranda through a newspaper advertisement.
The advert said the assembly committee on public service management and administration would receive memoranda and hear presentations from the public.
Semi said this did not happen and the assembly passed the Bill without public input.
He said that after he enquired, he was informed public participation would be carried out after the Bill was passed.
But the respondents said they carried out public participation through their website as they could not conduct a physical public participation due to the Covid-19 situation.
The county assembly argued that that they gave the residents an option of giving their contributions via the website, via email or by hand-delivering.
But the court said the assembly intentionally locked out its residents from the lifetime opportunity to contribute to the constitutional amendment process.
Nyakundi said the county was aware of the geographical terrain of the county where the majority of the population had no knowledge of ICT skills, the internet and connectivity. Thus, it was impossible for them to participate.
He said the assembly further failed to present any evidence showing the views were indeed received through the website.
“To demand the citizens to present their submission through the website was an uphill task even for the leaders of that assembly due to inadequate internet facilities," Nyakundi said.
The judge said the public participation ought to be a real exercise and not an illusory one.
“The respondent did not serve adequate notice of public participation and discriminately enforcing of it by the assembly was a misrepresentation and a violation of the Constitution,” he said.
(Edited by V. Graham)
