BBI Shocker: Five-Judge Bench Term BBI “Unconstitutional”
A five-judge bench of the constitutional court has brought BBI Bill into a “standstill”.
While defending the constitution and sovereignty of the people of Kenya, the judges shredded the process to the extent of terming the BBI Steering Committee unconstitutional.
Judges Prof Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka, and Chacha Mwita said President Uhuru Kenyatta does not have the power to directly initiate constitutional amendment under the law since parliament is the only organ with that power.
The judges say if that is allowed it will mean he would be granted the role of promoter and referee, the judges noted.
He can however through the AG use Parliament to initiate the process, they said.
The five judges say “It is our finding that popular initiative is a power reserved for Wanjiku neither the president nor any other state organ can utilize article 257 to amend the constitution,”
They added: “President cannot purport to directly initiate a constitutional amendment. He isn’t part of parliament. He has no power under the constitution to initiate changes under the constitution since parliament is the only state organ that can consider the effecting of constitutional changes. The president is not permitted to amend the constitution using popular initiative”
“Kenyans intended that the essence of constitutional order they were bequeathing themselves sin 2010 would only be changed in the exercise of primary constituent power that is through civic education, public participation, constitutional assembly plus a referendum and not through secondary constituent power which is through public participation and referendum only.”
The upshot is that the text structure history and context all read and interpreted decreed by the constitution is that basic structure doctrine is applicable in Kenya.
The 18 chapters which form the basic structure of the constitution outline a system of governance Kenyans chose. It includes also important areas such as land and environment, national security, and public finance.