Kenyan Court of Appeal Affirms BBI is Unconstitutional and Unlawful

Defining Moment for Appellate Judges in BBI Ruling
Defining Moment for Appellate Judges in BBI Ruling

Written by
Faridah N Kulumba

Africa-PressKenya. On 20 August 2021, Kenyan Court of Appeal upheld the High Court ruling that President Uhuru Kenyatta and opposition leader Raila Odinga’s Building Bridges Initiative (BBI) is null and void and its processes were unconstitutional.

In a majority decision, six of the seven judge bench, headed by the Court’s President Daniel Musinga tore into the BBI process, declaring several stages and actions unconstitutional and unlawful.

In their ruling however they expunged part of the High Court orders including one that said that President Uhuru had contravened Chapter six of the constitution, Star reported.

But the judges unanimously set aside the declaration that Uhuru contravened chapter six of the constitution for initiating the BBI process, and they agreed that the basic structure is applicable in Kenya.

BBI birth

In March 2018 Kenya’s opposition leader Odinga from Orange Democratic Movement and his bitter rival President Uhuru made up by shaking hands before the cameras, in what became known as “The Handshake” purporting to seek a lasting peace.

The handshake ended months of tensions following disputed elections, which always tend to be highly divisive and deadly in Kenya. And two leaders agreed to put together a team to find a way to end such instabilities.

President Uhuru appointed a taskforce to recommend administrative and other changes to achieve this.

The Building Bridges Initiative taskforce was to look at nine issues, including ethnic antagonism, corruption and devolution, which was thought to be among the greatest challenges since Kenya became independent in 1963.

The taskforce report was followed by the appointment of a BBI steering Committee tasked with proposing constitutional and other changes. These recommendations morphed into the Constitution of Kenya Amendment Bill 2020, following which a number of petitioners moved to court to challenge the controversial amendment proposals it contained. The resulting judgement rules on eight consolidated petitions challenging the proposed changes to the Constitution.

The High Court Judgement

On 13 May 2021 Kenya’s High Court overturned the president’s three year quest to amend Kenya’s 11 year old constitution. In a ruling heavily critical of President Uhuru, five judges said he had no authority to bring forward plans to create more executive positions and parliamentary constituencies.

President Uhuru’s quest to drive the process, the judges ruled, meant he had failed the leadership and integrity test, and could be sued while in office for contravening the constitution.

Court of Appeal ruling

The Judges appeared to raise the bar on amending the Constitution through popular initiative and making it even harder to amend the country’s supreme law.

Five out of seven judges affirmed that the basic structure doctrine limits the power to amend the constitution.

All judges anonymously ruled that civil proceedings can be instituted against the present, Justice Tuiyott dissented.

All judges also agreed  that the president does not have the authority to initiate changes to the constitution.

The bench also held that the BBI steering committee has no legal capacity to initiate changes to the constitution.

Six judges held that the constitution of Kenya cannot be subjected to the referendum.

However Justice Sichale disagreed with the majority who held that the Independent Electoral and Boundaries Commission (IEBC) did not have a quorum for carrying out verification of signatures and other administrative processes.

The judges appeared to raise the bar on amending the Constitution through popular initiative and making it even harder to amend Kenya’s supreme law.

The ruling also faulted President Uhuru for riding on a popular initiative- an avenue reserved for the common man to instigate constitutional charges.

The BBI judgement is historic for its elaboration of basic structure doctrine, and it is also historical because it does history work and show that in Kenya the law speaks.


Please enter your comment!
Please enter your name here