Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka unanimously ruled that the entire process that the BBI team followed in coming up with the constitutional amendment was unconstitutional.
Judges said that the president, the government, or any state organ cannot initiate a popular initiative in the constitution.
They said that the Constitution of Kenya Amendment Bill 2020 was a process that was initiated by the president.
DP Ruto was sidelined in the BBI process and his allies in both the National Assembly and the Senate voted against the bill.
The judges noted that the constitutional amendment bill seeks to short-circuit section 87 of the constitution and as such it is illegal.
They pronounced the amendment bill as unconstitutional.
The procedure and process used to create apportion the new constituencies is an attempt to amend the constitution by stealth and if allowed it will create a loophole through which basic structure of the constitution without triggering the primary constituent power.
On the issue of whether the IEBC did its work by authenticating the signatures in support of the amendment bill, the court said the commission did not do its work well.
No doubt that IEBC takes its role in voter verification more than ceremonial and it should apply the same seriousness with authentication and verification of signatures for the initiative to amend the constitution, the court held.
