14/05/2021
BBI Initiative declared unconstituitional, null and void!!!!!!!
The High Court yesterday held in the just concluded PETITION NO. E282 of 2020 (CONSOLIDATED WITH PETITION NOs. 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021) DAVID NDII & OTHERS (PETITIONERS) - VERSUS- ATTORNEY GENERAL & OTHERS……………………..RESPONDENTS held as follows;
1. The text, structure, history, and context of the Constitution of Kenya 2010 all read and interpreted using the canon of interpretive principles decreed by our Constitution yield the conclusion that the basic structure doctrine is applicable in Kenya.
2. As supplied in Kenya, the basic structure doctrine protects certain fundamental aspects of the Kenyan Constitution from amendment through the use of either secondary constituent power or constituted power.
3. The essential features of the constitution forming the basic structure can only be altered or modified by the people using their sovereign primary constituent power and not merely through a referendum.
4. From a holistic reading of the constitution, its history, and the context of the making of the Constitution, the basic structure of the Constitution consists of the foundational structure of the of the Constitution as provided in the preamble, the 18 chapters, and the six schedules two of the Constitution. It also includes the specific substantive areas Kenyans thought were important enough to pronounce themselves through Constitutional entrenchment including the provisions on land environment, leadership and integrity, public finance, and national security.
5. The basic structure doctrine protects the core edifice foundational structure and values of the Constitution but leaves open certain provisions of the constitution as amendable through the procedures outlined in articles 255, 256 and 257 of the Constitution in as long as they do not change the basic structure.
6. There are certain provisions in the constitution which are insulated from any amendment at all because they are deemed to express categorical core values. These provisions are therefore unamendable and cannot be changed through the exercise of secondary constituent power or constituted power.
7. This sovereign primary constituent power is only exercisable by the people after four sequential processes namely: civic education, public participation and collisional views, constituent assembly debate, and ultimately a referendum.
8. The power to amend the Constitution through the popular initiative route under article 257 of the Constitution is reserved for the private citizen; for Wanjiku only. Neither the president nor any state organ is permitted under our constitution to initiate constitutional amendments using the popular initiative route.
9. Under article 143 (3) of the Constitution, the president can be sued in his or her personal capacity during his or her tenure in office except for actions or omissions in respect of anything done or not done in the exercise of his or her powers under the constitution.
10. The Constitution Amendment Bill 2020, which was developed by the BBI Steering Committee - and is being promoted by the BBI Secretariat, is an initiative of the president. The president does not have constitutional mandate to initiate constitutional amendments through popular initiative under article 257 of the Constitution.
11. To the extent that the BBI Steering Committee was employed by the president to initiate proposals to amend the constitution contrary to article 257 of the Constitution they BBI steering committee is an unconstitutional entity.
12. Additionally, the BBI Steering Committee is unlawful because the president violated the provisions of article 132 sub article 4A of the Constitution in its establishment.
13. In taking initiatives to amend the Constitution other than through the prescribed means in the Constitution the president failed to respect, uphold, and safeguard the constitution and to that extent he has fallen short of the leadership and integrity threshold set in article 73 of the Constitution and in particular article 73 (1) (a) thereof.
14. The history of article 257 of the Constitution, read together with articles 95 (3) and 109 (1) (2) of the Constitution, yields the conclusion that in order to effectively carry out referendum process, as contemplated under our Constitution it is necessary that a specifically legislation be enacted for that purpose.
15. Notwithstanding the absence of an enabling legislation as regards the conduct of referenda, such constitutional process may still be undertaken as long as the consumer expectations values principles and objects especially those in Article 10 of the constitution are met.
16. Parliament and the County Assemblies or any other state organ cannot under the guise of consideration and approval of a popular initiative to amend the constitution and article 257 of the Constitution alter or amend the Constitution Amendment Bill presented to them.
17. Article 255 sub-article one of the constitution yields the conclusion that each of the proposed amendment clauses ought to be presented as a separate referendum question.
18. Article 89 (1) of the Constitution, which provides for the exact number of constituencies, while being part of the basic structure of the Constitution is not an eternity clause. It can be amended by reducing or increasing the number of constituencies by duly following and perfecting the amendment procedures outlined in article 255 to 257 of the Constitution.
19. The criterion procedure for delimitation and apportionment of constituencies set out in articles 89 (4) (5) (6) (7) (10) (12) are unamendable constitutional provisions - in other words they are eternity clauses and they can only be amended by the exercise of primary constituent power.
20. It is unconstitutional for a constitution amendment bill to directly allocate and apportion constituencies in contravention of article 89 of the Constitution.
21. The Independent Electoral and Boundaries Commission cannot conduct any proposed referendum because:
i. It has no quorum. The quorum for the conduct of business by the IEBC is 5 commissioners. Period.
ii. The IEBC has not carried out nationwide voter registration.
iii. The IEBC has no legal or regulatory framework for the verification of signatures as required by articles 257 (4) of the Constitution.
22. Lastly, in view of what we just said about the IEBC, all the actions taken by the IEBC with respect to the Constitution Amendment Bill, 2020, are null and void.
And now, our disposition, the orders that we will give in the consolidated petitions.
The orders which recommend themselves, which we hereby grant, are the following:
1. A declaration hereby issues:
i. That the basic structure doctrine is applicable in Kenya.
ii. That the basic structure doctrine limits the amendment power set out in articles 255 to 257 of the Constitution in particular the basic structure doctrine limits the power to amend the basic structure of the Constitution and eternity clauses.
iii. We declare that the basic structure of the Constitution and eternity clauses can only be amended through the primary constituent power which must include four sequential processes namely: civic education, public participation and collection of views, constituent assembly debate, and ultimately, a referendum.
2. A declaration is hereby made that civil court proceedings can be instituted against the president or a person performing the functions of the office of the president during their tenure of office in respect of anything done or not done contrary to the constitution.
3. A declaration is hereby made that the president does not have authority under the Constitution to initiate changes to the Constitution and that a constitutional amendment can only be initiated by parliament through parliamentary initiative under article 256 or through a popular initiative under article 257 of the constitution.
4. A declaration is hereby made that the steering committee on the implementation of the building bridges to united Kenya task force report established by the president vide Kenya Gazette notice number 264 or 3rd January 2020 and published in a special issue of the Kenya Gazette of 10th January 2020 is an unconstitutional and unlawful entity.
5. A declaration is hereby made that being unconstitutional and unlawful entity the steering committee on their implementation of the building bridges to a united Kenya task force report has no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the constitution.
6. A declaration is hereby made that the entire BBI process culminating with the launch of the Constitution of Kenya Amendment bill 2020 was done unconstitutionally and in usurpation of the people's exercise of sovereign power.
7. A declaration is hereby made that Mr. Uhuru Muigai Kenyatta has contravened Chapter Six of the Constitution, and specifically article 73 sub-article one, sub-sub article a, sub-sub-sub article 1 by initiating and promoting a constitution change process contrary to the provisions of the constitution on amendment of the constitution.
8. A declaration is hereby made that the entire unconstitutional change process promoted by the steering committee on the implementation of the building bridges to united Kenya task force report is unconstitutional, null and void.
9. A declaration is hereby made that the constitution amendment bill 2020 cannot be subjected to a referendum before the IEBC carries out nationwide registration exercise.
10. A declaration is hereby met that the IEBC does not have quorum stipulated by Section 8 of the IEBC Act as read with paragraph 5 of the second schedule of the Act for purposes of cutting out its business relating to the conduct of the proposed for end of including the verification of signatures in support of the constitution amendment bill under article 257 (4) of the Constitution submitted by the building bridges secretariat.
11. 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.
12. A declaration is hereby made that the absence of a legislation or legal framework to govern the collection presentation and verification of signatures and the conduct of referenda in the circumstances of this case renders the attempts to amend the constitution of Kenya through the constitution of Kenya amendment bill 2020 flawed.
13. A declaration is hereby made that County Assemblies and parliament cannot as part of their constitutional mandates to consider a constitution amendment bill initiated through a popular initiative under article 257 of the constitution change the contents of such a bill.
14. A declaration be and is hereby made that the 2nd schedule to the constitution of Kenya amendment bill 2020 insofar as it purports to predetermine their location of 70 constituencies is unconstitutional.
15. A declaration be and is hereby made that the 2nd schedule to the constitution of Kenya amendment bill 2020 insofar as it purports to direct the IEBC on its functions of consistency delimitation is unconstitutional.
16. A declaration be and is hereby made that the 2nd schedule to the constitution of Kenya amendment bill 2020 insofar as it purports to have determined by delimitation the number of constituencies and apportionment within the counties is unconstitutional for want of public participation.
17. A declaration is hereby made that the administrative procedures for the verification of signatures in support of constitutional amendment referendum made by the IEBC are illegal, null, and void because they were made without quorum in the absence of legal authority any violation of article 94 of the constitution and sections 5/6/11 of the Statutory Instruments Act.
18. A declaration is hereby made that article 257 sub-article 10 of the constitution requires all the specific proposed amendments through the constitution be submitted as separate and distinct referendum questions to the people.
19. A permanent injunction be and is hereby issued restraining the IEBC from undertaking any processes required under article 257 (4) and 257 (5) in respect of the constitution of Kenya amendment bill 2020.
20. The prayer for an order that Mr Uhuru Muigai Kenyatta makes good public funds used in the unconstitutional constitutional change process promoted by the steering committee on the implementation of the building bridges to a united Kenya task force report established by Mr Uhuru Muigai Kenyatta is declined for reasons that we've given in our judgment.
21. The prayer for the orders that the Hon. Attorney General to ensure that other public officers who have directed or authorized the use of public funds in their unconstitutional constitutional change process promoted by the steering committee by the BBS hearing committee make good they said funds is also declined for the results we have given in our judgment.
22. The rest of the reliefs in the consolidated petitions which we have not specifically granted above a deemed to have been declined.
23. Lastly, this being a public interest matter parties shall bear their on costs.
