17 Glaring Loopholes that Led to BBI Being Declared Illegal

5-Judge bench that declared BBI illegal

Yesterday’s ruling delivered at the Milimani Law Courts has exposed glaring loopholes that sent the BBI to its grave after the judges ruled that the whole process was illegal.

An analysis of the ruling has exposed what the judges took into consideration to arrive at the conclusion that the process went against the constitution.

On the creation of 70 new constituencies and distributing them across the 47 counties, the High Court ruled that the Independent Electoral and Boundaries Commission was not involved adding that IEBC was not properly constituted to carry out it’s mandate.

The judges also considered whether voter registration was carried out as required by law before a referendum. 

While stating their case, the eight petitioners including economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma and Moraa Omoke argued that the BBI bill was not a popular initiative but an agenda based on changing political waves within the country.

The judges also considered whether the bill could have multiple questions during a referendum. 

“BBI is a hybrid initiative unknown to the constitution, therefore it is our finding that the popular initiative as means to amend the constitution under article 257 of the constitution is a power reserved for Wanjiku. Neither the president nor any state organ can utilize article 257 of the constitution to amend the constitution,” the judges said.

Issues the court considered in determining the petitions challenging BBI

  • What should constitute the basic structure of a constitution amendment
  • If the basic structure is established, what is its implication to the BBI process
  • What are the constitutional limits for the amendment of the constitution through a popular initiative? Who can initiate a popular constitutional amendment? Is the BBI in conformity with the constitution?
  • Should the president be directed to refund money used in the BBI process?
  • Was the president in violation of the constitution by commencing the BBI process?
  • Is there adequate legal backing to initiate popular initiative?
  • Is it permissible for county assemblies or Parliament to alter the existing bill sent to them?
  • Does the constitution envisage an omnibus bill or specific questions to be subjected to a referendum?
  • Was it unlawful for the Constitutional amendment bill to leave an independent health commission in the bill?
  • Is it lawful to set a specific number of constituencies as proposed in the BBI?
  • Is it lawful to directly allocate the proposed constituencies to specific regions?
  • Has the IEBC carried out national voter registration and can there be a referendum without this?
  • Is IEBC properly constituted and did they carry out proper signature verification exercise?
  • Is a legal framework in place to regulate the process of a referendum?
  • Was it a violation of the constitution to promote the BBI in the midst of the Covid-19 pandemic?
  • Should the president dissolve parliament?
  • What reliefs should the court give?

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