On Friday, August 20, the Court of Appeal ruled that President Uhuru Kenyatta’s attempt to amend the Constitution through the BBI process was unconstitutional.
Many judges ruled that Kenyatta was not legally allowed to introduce constitutional change through a popular program, a method set for the common man.
Judges Roselyn Nambuye and Hannah Okwengu ruled that classification functions belong to the IEBC and therefore the agency should be fully involved in the process. Proponents of her case have been working to make the actual transcript of this statement available online.
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Many judges further ruled that the Constitution of Kenya has a fundamental structure, which must be protected, and that proposals to change the structure must attract significant support from the people.
Assistance, the judges felt, could take the form of a successful referendum, but before the referendum can take place, adequate public participation must take place.
Court of Appeal President Daniel Musinga said a radical constitutional change process – similar to the one used to pass the 2010 Constitution – should be taken into account when pushing for BBI reform.
Musinga further ruled that the BBI’s management committee did not have a constitutional responsibility to initiate change through a popular program.
The President of the Court of Appeal also ruled that adequate public participation was not made in the run-up to the possible referendum.
“Although more than a million voters signed in support of the amendment bill, it has not been shown that the exercise was done in a transparent manner,” he said.
Almost all seven judges ruled that President Kenyatta was not legally allowed to use the popular method of proposing changes to the main law.
Below is a summary of each judge’s decision:
Civil cases have been brought against the President without giving him the right to be heard.
• IEBC was created correctly when confirming BBI signatures.
• The IEBC had an adequate legal framework to regulate the referendum.
• The president cannot initiate constitutional change with a popular plan.
• The IEBC does not play a role in increasing or decreasing the number of parliamentary seats. It was not unconstitutional for the BBI to propose an increase in the number of sites without involving the IEBC.
• The IEBC was incorrectly designed when verifying the signatures of the BBI.
• The president cannot initiate constitutional change with a popular plan. The president does not fall under the category of “general public”.
• Fundamental doctrines: can change, but within the framework of law.
• All constitutional provisions can be changed, without changing the whole Constitution.
• Signature Verification was not properly performed by IEBC. There was not enough time to issue a public notice to verify the list of signatures and names.
• The IEBC had certain elements of the legal system to organize a referendum.
• Lack of legal framework does not mean that the IEBC should be prevented from fulfilling its legal responsibilities.
• The IEBC was not properly formed when confirming the signature and fulfilling its mandate by the BBI. The IEBC Act sets out the fifth category.
• Je! Has the President been submitted with a request that he has been named as the respondent and has received a Notice of Hearing? No. The Attorney General could not represent the President and therefore the President had to be personally served.
• The President may be personally prosecuted during his or her term of office.
• Je! Is the basic structure doctrine applicable in Kenya? Yes. The Constitution contains the essence of immutable principles that give it its identity. Pakistan, Bangladesh and Argentina all adopted the doctrine of the Basic Structure, which is now widespread throughout the world. “The basic doctrine of the structure is legitimate and sound. Every house must have a structure.
• The people were not the only observers in the development of the 2010 Constitution.
• The proposed amendments to the BBI were “substantial in nature, scope and content;
A referendum can only be held if the process leading up to it, as well as civic education, public participation, opinion polls and debate in Parliament, will be respected. “The referendum process can be rendered unproductive due to lack of prior civic education and public participation.”
• A popular program is made and run by citizens. It must be established by an “ordinary citizen”, and not by a president. The president could use the parliamentary plan through his political party.
• The popular method of planning was not available to the President.
• Public participation was not sufficiently carried out, although the collected signatures were legally collected. County assemblies did not involve county residents in their counties. Some churches “passed the bill for a few days” without involving citizens.
• High Court judges sentenced the president without a hearing because he did not receive a hearing.
• The President may be personally prosecuted; does not enjoy immunity at all. He may be prosecuted outside of his constitutional duties.
• A referendum within the framework of a draft constitutional amendment and a popular plan must be governed by a well-thought-out special law.
• The IEBC did not have a legal framework to verify BBI signatures. There was also a lack of quorum. IEBC quorum must be five. Such a “significant” role [of referendum oversight] requires the full structure of the IEBC.
Hannah is mine
• I am of the opinion that people can create a new Constitution, but the legal process of amending the Constitution must be followed. The process includes: civic education, public participation, special Constituent Assembly debate, public consultation and dialogue and referendum.
• Parliament does not have the power to amend or change the basic structure of the Constitution.
• Proposed constitutional amendments must meet procedural and major requirements. The Constitution of Kenya has a fundamental structure. No special clause that cannot be changed has been made.
• The President cannot use a popular plan to propose changes to the Constitution.
• No evidence was presented to the court that there was insufficient public participation.
• Lack of public participation made the BBI process constitutionally unsustainable.
• The BBI Secretariat was not an BBI advocate; The president was. Junet Mohamed was also not qualified to take action on a popular program because she, as a deputy, is a government official.
• The BBI proposing an increase in the number of sites without the contribution of the IEBC was unconstitutional.
• There was no law governing the collection of signatures.
• The basic structure of the Constitution: “does not exist”.
• The BBI’s proposal to increase the number of parliamentary seats from 290 to 360: “violates the procedures for allocating electoral units and seizing IEBC powers”.
• The President is not immune to allegations of personal power.
• There is no arguing that the Constitution of Kenya has a fundamental structure. What matters is the basic structure.
• Strict constitutional amendment procedures similar to those used to adopt the 2010 Constitution must be adhered to.
• The President introduced the BBI Constitutional Amendment Act.
• The BBI Secretariat was the BBI’s advocate.
• The BBI Board of Directors does not have the constitutional authority to initiate change through a popular program.
• Public participation was not done properly.
• The President cannot initiate a constitutional amendment with a popular plan.
• BBI supporters overstepped their authority by proposing an increase in the number of parliamentary seats to 70 without the involvement of the IEBC.