The country will today know whether the proposed constitutional amendments under the Building Bridges Initiative (BBI) will proceed to a referendum.
A five-judge bench led by Prof Joel Ngugi will determine 17 questions raised against the BBI proposals to amend the constitution.
The questions emerged from eight consolidated petitions filed by rights activists, organisations and some Kenyans questioning the legality of proposals on constitutional and legislative amendments as well as draft Constitution of Kenya (Amendment) Bill 2020.
The petitions also challenge the content and the process by which the Bill was formulated and the steps that have been and are intended to be taken in an effort to amend the Constitution. The petitioners contend that the said contents and the processes violate the Constitution.
Among the main questions that the court will address is whether the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report is a legal entity and whether it had locus standi to promote constitutional changes pursuant to Article 257 of the Constitution.
The bench will also rule on whether legal and judicial doctrine of the basic structure of a Constitution is applicable in Kenya. The issue was raised by a group of four Kenyans led by economist David Ndii who want court to find that five chapters of the Constitution are eternal clauses and cannot be amended either under Article 256 by Parliament or through popular initiative under Article 257.
The said chapters are Chapter ONE 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 TEN on the Judiciary.
Popular initiative
Another question is whether in the process of formulating the Constitutional Amendment Bill, the provisions of Articles 27 and 47 of the Constitution as read with Section 4 of the Fair Administrative Action Act were adhered to.
Further, whether the entire BBI process culminating with the launch of the Constitutional Amendment Bill was undertaken constitutionally.
The court will also inform the country whether the Constitutional Amendment Bill is a Popular initiative as envisaged under Article 257 of the Constitution and if not, whether the process chosen to enact the constitutional amendment is fundamentally flawed and constitutionally infirm.
Another determination will be on whether at the time of launch of the Constitutional Amendment Bill and the collection of endorsement signatures, there was a legislation governing the collection, presentation, and verification signatures or a legal framework or administrative structure to govern the conduct of referenda in the Country.
And is the absence of such legal and administrative framework fatal to the Constitutional Amendment Bill.
The court will also determine whether Article 257(10) requires all the specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper.
Further, the bench will clear doubts on Whether the constitutional edict does empower the National Executive or any State organ, as opposed to Parliament, to pursue or initiate any amendment to the Constitution without petitioning Parliament.
Hurry to endorse document
Still on the issue of who should promote the referendum Bill, the court will rule on whether in a popular initiative to amend the Constitution, the National Executive can use public resources, including deploying public and State officers to either collect signatures or popularize any intended amendments to the Constitution.
Since the Second Schedule to the Constitutional Amendment Bill proposes creation of 70 new parliamentary constituencies, the court will determine whether the BBI taskforce usurped powers of the Independent Electoral and Boundaries Commission (IEBC) and whether the taskforce has powers of directing IEBC where to create a constituency.
The other main question is whether the current Parliament having been declared unconstitutional by the Chief Justice had the powers to consider the Constitutional Amendment Bill.
The bench comprises justice Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Chacha Mwita.
When the promoters of the Bill appeared to be in hurry of having the document endorsed by the County Assemblies and Parliament, the court noted that rush does not block court from declaring the entire process unconstitutional.
“Rushing the Constitutional Amendment Bill through County Assemblies and eventually Parliament, does not inoculate the resultant proposed constitutional amendment from the possibility that it could yet, upon final disposition of these Petitions, be declared invalid,” said the judges while prohibiting IEBC from taking any action to advance the Bill to a referendum pending determination of the petitions. BY DAILY NATION
