• During the judgments, both the High Court and the Court of Appeal shot down the push to amend the Constitution through the BBI.
• BBI was born out of the cooperation between President Uhuru and Raila after their March 9, 2018 handshake that took the country by storm.
Image: ANGWENYI GICHANA
The Building Bridges Initiative, a constitutional amendment fronted by President Uhuru Kenyatta and ODM leader Raila Odinga, flopped despite having been passed by the majority of County Assemblies, the National Assembly and the Senate.
The constitutional amendment process was stopped by both the High Court and the Court of Appeal.
It was born out of the cooperation between President Uhuru and Raila after their March 9, 2018 handshake that took the country by storm.
As has previously explained by the former Prime Minister, their handshake was as a result of agreeing to work on nine key things that would foster peace and prosperity in the country.
They included; taming corruption, promoting national ethos, ensuring devolution succeeds, doing away with divisive politics which has been a recurring thing in each election cycle, and the safety and security of Kenyans.
They also agreed that human and civil rights respected and enforced, inclusivity of all Kenyans, and shared prosperity, as well as eradication of ethnic antagonism and competition.
The BBI had among other issues proposed the creation of the office of a Prime Minister who would be appointed by the president. He would also be deputised by two people from the cabinet.
It also proposed increasing revenue allocation by at least 35 per cent to the devolved units; create an office of the official opposition leader who would have a shadow cabinet.
It sought to have an additional 70 constituencies, half cabinet appointed from parliament, give tax holidays of up to 7 years to new and small businesses.
The cabinet would include; a deputy president, prime minister and ministers and would be chaired by the president. The presidential term limit would remain two-five year terms.
These proposals despite having been given green lights by all relevant institutions were met by one more huddle after a section of Kenyans, and lobby groups filed petitions in different courts, challenging the legitimacy of the constitutional change drive.
During the judgments, both the High Court and the Court of Appeal shot down the push to amend the Constitution through the BBI, describing the Constitution (Amendment) Bill, 2021, as null and void.
Some of the key issues raised at the courts were; if the basic structure applies in Kenya, if the President can start a popular initiative law review, and if he can be sued in a personal capacity.
Also raised was whether the Independent Electoral and Boundaries Commission was properly constituted when it approved the Bill and whether the proposed new 70 constituencies are legal.
Another issue was whether a referendum ballot paper should have one or multiple questions and if the BBI complied with the participation threshold, all of which the Supreme Court is expected to rule on.
While stopping the BBI reggae, both the High Court and the Court of Appeal ruled the BBI was unconstitutional for failing to follow the sequential steps.
The two lower superior courts said the Basic Structure Principle is applicable to Kenya.
The second issue is whether the President can initiate changes to amend the Constitution through a popular initiative.
The lower courts ruled the President has no power to initiate an amendment of the Constitution through a popular initiative.
The courts said the popular initiative is a preserve of ordinary citizens.
The High Court and Court of Appeal found that the proposal to have additional constituencies was illegal, as the delimitation of boundaries is the mandate of the Independent Electoral and Boundaries Commission.
The High Court and the Court of Appeal had found the IEBC had no quorum to conduct major business and approve the BBI.
The lower courts said civil proceedings could be initiated against the President in his personal capacity, meaning he does not have absolute immunity.
The case challenging BBI was first filed at the High Court by activists who opposed the initiative.
The activists were economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.
Later, the Ndii-led team’s case was consolidated with seven other cases challenging the BBI process to amend the Constitution.
They sued Attorney General Kihara Kariuki, National Assembly Speaker Justin Muturi, his Senate counterpart Ken Lusaka and IEBC.
The cases challenged the content of and the process by which the BBI Bill was formulated. They challenged the steps that had been and were intended to be taken to amend the Constitution.