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NAIROBI, Kenya, May 13- A five-Judge bench of the High Court on Thursday ruled that President Uhuru Kenyatta has violated the Constitution and risks prosecution.
The judges ruled that anyone can institute a civil application against the president for violating the Constitution when he initiated the process of amending the Constitution through the Building Bridges Initiative (BBI) because he acted outside his mandate.
“A declaration is hereby made that civil suits can be instituted against the President or a person performing the functions of a President during the tenure of office in respect of anything done or not done contrary to the constitution,” reads the unanimous by ruling Judges Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita on Thursday night when they nullified the entire BBI process.
“President Uhuru Kenyatta violated Article 131 (2) (c) of The Constitution of Kenya. He has failed to respect, uphold and safeguard the Constitution. He has failed the leadership and integrity test under Article 73 (1) (a). The entire BBI Bill is an invalid and void exercise,” the court ruled.
They ruled that the president violated the Constitution, particularly Chapter 6, when he initiated the process following his handshake with former Prime minister Raila Odinga with whom he promoted the process.
“The constitutional amendment Bill is an initiative of the president and the law is clear that the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative,” the judges ruled in what now throws the BBI process into disarray, ” “The 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 a popular initiative.”
They said only Parliament or the citizens can initiate such process, thus, “A declaration is hereby made that civil proceedings can be instituted against the president for violating the Constitution, by initiating its amendment.”
The judges also faulted the Independent Electoral and Boundaries Commission (IEBC), saying all the decisions it made, including verifying BBI signatures.
The judges said, the commission was not properly constituted because it lacked the requisite quorum of five commissioners to make any major policy decision.
“All the decision IEBC made regarding the constitutional amendment Bill is illegal because it lacks the quorum required,” the judges ruled, “At the time the BBI report was launched, there was no legislation in place to guide the referendum process.”
As soon as the court ruling was issued, Deputy President William Ruto was opposed to the constitutional amendments tweeted:
Solicitor General Ken Ogeto has indicated that the state will appeal the decision.
The steering committee on the implementation of the Building Bridges Initiative to a united Kenya taskforce that was established by the President was also declared “unconstitutional and unlawful.”
“A declaration is hereby made, that being an unconstitutional and unlawful entity the steering committee of the Building Bridges Initiative to a united Kenya taskforce has no legal capacity to initiate any action towards promoting constitutional changes under Article 257 of the Constitution,” the court ruled.
On the question of multiple questions to be used in the referendum that its promoters wanted held in July, the judges said Constitutional amendments should be presented to the people as separate referendum questions.
“All proposed amendments to the Constitution should be presented separately to the people as separate questions to be voted for separately. This upholds the sovereignty of the people expressed in the Constitution’s preamble,” the judges said.
And they added, “to lump all proposals together as an omnibus bill for the purposes of either laundering the whole bill is not permissible under our constitution. Not only does such a scenario lead to confusion but it also denies voters the freedom of choice.”
They also declared the BBI promoters’ intention to create 70 new constituencies as invalid, null and void, saying the delimitation of electoral boundaries is the sole function of IEBC under Article 89 of The Constitution of Kenya.
The Court equally found that the BBI Steering Committee failed to give people information and sensitize them prior to collecting signatures which makes the process unconstitutional.
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