BY SAM ALFAN.
Proponents of Building Building Initiative (BBI) have suffered a major setback after the High Court stopped the electoral body from taking any action that will facilitate the planned referendum.
Although a bench of five judges declined to stop county assemblies from debating and approving or rejecting the bill, the judges restrained Independent Electoral and Boundaries Commission from facilitating the referendum Bill.
“A conservatory order be and is hereby issued restraining the Independent Electoral and Boundaries Commission from facilitating and subjecting the Constitution (Amendment) Bill, 2020 to a referendum, or taking any further action to advance the Constitution (Amendment) Bill, 2020, pending the hearing and determination of these Consolidated Petitions” ordered the judges.
Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita said the referendum process should remain on hold, pending the determination of seven petitions.
The judges said they believe it was in the public interest that the conservatory order be granted.
“Therefore, all considered, without deciding with finality the issues raised in these Petitions and while we do not agree that the processes intended to be taken by the County Assemblies and Parliament will render these petitions superfluous, we are of the view and find that, based on the Munya Case (supra), it is in the public interest that appropriate conservatory orders be granted,” they added.
The case was filed by Economist David Ndii and four other activists.
It was later consolidated with six other Petitions which included Thirdway Alliance and Turkana county assembly.
Thirdway Alliance argues that there was significant development in the referendum Bill following after IEBC certified that the bill had met the requisite threshold.
This was after confirming that it has the support of over 1000 registered voters. The electoral body later submitted the bill to all the 47 counties for consideration .
Ndii filed the case together with other activists Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.
Through the Law Society of Kenya president Nelson Havi, they sued Chief Government Advisor, Speaker of National Assembly Justin Muturi, Speaker of Senate Ken Lusaka and IEBC.
They want interpretation of Chapter One of the Constitution on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on The Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter 10 on the Judiciary, which BBI intends to rely on cannot be amended.
“The recent developments in the country’s legislative history confirm a threatened abrogation, contravention and violation of Chapters One, Two Four, Nine and 10 and in particular Articles 256 and 257 of the Constitution by the respondents,” they argued.
They accuse Parliament of intending to pass laws that alter the basic structure of the Kenyan Constitutional foundation claiming that Parliament lacks clear parameters to guide it on basic structure amendments in the exercise of authority.
“In the absence of clear guideposts to define the scope of Parliament’s authority to amend the Constitution, Parliament appears to adopt the approach that it enjoys an unlimited authority, a carte blanc, to consider any and all amendments to the Constitution,” they argued
According to them, they are apprehensive that the approach by parliament is likely to consider and adopt now and in the future amendments that constitute essential features of the 2010 Constitution.
“The amendability of which are outside the scope of the amendment power of Parliament by dint of the Basic Structure Doctrine asserted in this Petition,” they say.
The Judges in their ruling noted that they had powers to intervene even at the tail end of the process.
“The court has the requisite jurisdiction to declare the actions of County Assemblies and Parliament unconstitutional and invalid if the process was not followed,” ruled the Judges.
