BBI: Judgment Day is coming

At the end of this week, the country is set to witness the beginning of a major shakeup in the political landscape as the Court of Appeal renders its decision on the Building Bridges Initiative (BBI). 

The much awaited judgment of the seven-judge bench led by Court of Appeal President Daniel Musinga is billed to be a make-or-break moment for the ‘Handshake’ between President Uhuru Kenyatta and ODM leader Raila Odinga.

The second highest court is expected to clear or block the road to a referendum to, among others, expand the executive and create the office of an ombudsman to oversee the Judiciary, the third arm of government.

Observers say should the court of appeal uphold the High Court decision in its entirety, President Kenyatta will lose a chance to engineer his succession in 2022 at a time he is also reported to have settled on Mr Odinga as his preferred heir.

And should the appellate judges overturn High Court’s decision, their judgment will put the president at the centre of his succession.

“BBI had subtle political agenda of isolating Deputy President William Ruto. Its net effect is to give a platform to anti-Ruto to coalesce during its campaign and share the subsequent BBI posts once created.  Collapse of the BBI at the High Court dented Raila’s image,” says Dr Irungu Kang’ata, the Murang’a Senator and a lawyer.

The appeals court will either endorse or overturn High Court declaration that President Kenyatta had acted illegally by driving the Constitution of Kenya Amendment Bill, 2020, and that he can be sued in person while still in office.

However, in his appeal, Mr Kenyatta denied being the driver or initiator of the BBI process, saying the same was being done by a steering committee led by Mr Junet Mohammed (Suna East MP) and Dennis Waweru (former Dagorreti South MP).

Proposed referendum

The 785-paragraph judgment stated that the BBI was an illegal process of amending the Constitution and censured the electoral agency for planning to hold a referendum without proper verification of the signatures collected in support of the pill or a public participation.

In the judgment expected to be delivered on Friday, the appeals court bench may come up with a unanimous or a divided decision.

In the event they are divided, the ruling of the majority judges will carry the day.

The judges are also likely to come up with a mixed-up ruling by upholding or quashing some of the findings made by the High Court on BBI and the proposed referendum, which had already been approved by Parliament.

However, the case is complex since the appellate judges will be dealing with each of the 22 declarations issued by the High Court while shooting down President Kenyatta’s and Mr Odinga’s three-year quest to amend the Constitution and bring what they claimed as an end to the country’s cycle of post-election violence.

The focus of the judgment is also on the adverse findings made against the Independent Electoral and Boundaries Commission (IEBC) on how it processed the BBI bill.

Evidence indicated IEBC violated its own rules on verification of signatures of voters who endorsed the Bill, which sought amendment of 74 laws.

List of BBI supporters

For instance, judges said the commission denied Kenyans adequate access and time to confirm whether their details had been erroneous used to endorse the Bill.

The IEBC’s Administrative Procedures provided for a two-week period for voters to check and confirm their details but the Wafula Chebukati-led team gave voters only five days, including a weekend.

Evidence showed that the IEBC published the list of BBI supporters on its website on Thursday January 21, 2021 and members of the public had up to Monday January 25 to read the list and raise any issues they had.

The trial court found that the electoral agency could also not conduct any proposed referendum because it had no quorum: the quorum for the conduct of business by the IEBC is five commissioners.

IEBC had not carried out nationwide voter registration and it lacked legal or regulatory framework for the verification of signatures as required by Articles 257(4) of the Constitution, the court found.

Another focus will be on the High Court’s finding that the country’s Constitution has a Basic Structure, which could only be amended through the exercise of a primary constituent power of the people.

Though the declaration of basic structure was widely understood to mean that certain sections of the Constitution are unammenable, the High Court ruled that amending the basic structure require recreation of the conditions and a four-step procedure involved in the founding of the 2010 Constitution.

The steps include civic education, public participation, the convening of a Constituent Assembly and eventually a referendum.