DISAPPOINTED

Raging BBI storm: County assemblies take on Judiciary over ruling

Furious MCAs accuse the five-judge bench that stopped constitutional amendment of overturning the will of the people.

In Summary

• The judges said Uhuru made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue available only to ordinary Kenyans.

• The judges also ruled that IEBC lacked quorum as stipulated by law for purposes of carrying out a referendum, including verification of signatures.

A section of MCAs drawn from all the 47 counties has scathingly criticized the court ruling that nullified the BBI-driven constitutional amendment process.

A section of MCAs drawn from all the 47 counties has scathingly criticised the court ruling that nullified the BBI-driven constitutional amendment process.

The ward reps said the ‘strange’ ruling delivered by a five-judge bench overturned the sovereignty of Kenyans who endorsed the bid to amend the Constitution.

“We demand that the Judiciary stop robbing Kenyans of their sovereign powers or abusing the delegated indirect powers donated to them by Kenyans,” they said in a statement read out by Meru assembly Majority leader Victor Kareithi.

Addressing a press conference at Serena Hotel in Nairobi on Sunday, the MCAs expressed their disappointment at the verdict, saying it sets a very treacherous and hopeless route for the country.

“The judgment does not acknowledge that a constitution is a living document that must be responsive to the needs and desires of a society at any given time,” they said.

Their attack came just a day after ODM leader Raila Odinga—a partner in the handshake that culminated in the constitutional amendment bill—appealed for restraint. The MCAs called for an end to judicial tyranny that risks plunging the country into violence.

“By holding that some sections of the Constitution cannot be amended whether by popular or parliamentary initiative or what they termed generally as ‘eternity clauses’, the judges boldly and without any solid analysis took away the sovereign power of the people,” they said.

They added that the judges took away the powers of the President under Article 132 of the Constitution by declaring the BBI committee unconstitutional.

According to the county legislators, the President has the constitutional mandate to promote and enhance the unity of Kenyans.

In a ruling delivered on Thursday evening, the five-judge bench, led by Justice Joel Ngugi, cited 20 reasons why the entire BBI process leading to the Constitution of Kenya (Amendment) Bill, 2020, was unconstitutional, null, and void.

They said, for instance, Uhuru made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue available only to ordinary Kenyans.

The judges also ruled that the IEBC lacked quorum as stipulated in the law for purposes of carrying out referendum preparations, including verification of signatures.

They said the Constitution of Kenya (Amendment) Bill, 2020, cannot be subjected to a referendum before the IEBC carries out nationwide voter registration.

“A declaration is hereby made that at the time of the launch of the Constitution of Kenya (Amendment) Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation, and verification of signatures nor a legal framework to govern the conduct of referenda,” the bench said.

The MCAs said the judges contradicted earlier rulings that have been made especially in relation to the composition of the IEBC.

“In fact, we find it strange that although Article 250 (1) provides that any commission, including the IEBC, can have a minimum of three members, the bench found that on one hand, the IEBC can transact business and on the other hand [it can't] because a statute provides a quorum of five members,” they said.

They lamented that with the ruling, National Treasury allocations to the counties will remain at the current minimum of 15 per cent of the national revenue as opposed to the 35 per cent proposed in the bill.

The MCAs added that they will be denied ward development funds as envisioned in the bill and as such county assemblies will never be financially independent.

“There will never be equitable distribution of county resources, population parameter will never matter in resource sharing,” Kareithi said.

They added that the Senate will never robustly oversight the billions of shillings allocated to the county governments and their expenditure.