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Court declares BBI unconstitutional

The High Court on Thursday night, May 13 ruled that the Constitutional Amendment Bill 2020 is unconstitutional.

The court termed the Bill null and void due to a number of illegalities within the bill and the entire process that came up with it.

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The ruling was made by Justice Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita.

The judges were tasked with debating whether the petition would proceed to the referendum or not.

The five-bench judge argued that the BBI Bill is not a popular initiative but a taskforce initiated by President Uhuru Kenyatta.

“It is therefore clear as concluded above that the BBI taskforce, which was morphed into the steering committee, was the President’s and not the people’s initiative,” said Judge Mwita.

He added;

“It is also quite clear that what was presented as a popular initiative to amend the constitution is, in reality, the President’s initiative which is contrary to Article 257 of the constitution.

The judges also faulted the 70 new constituencies’ proposal terming it unconstitutional, noting that the jurisdiction falls under the Independent Electoral and Boundaries Commission (IEBC).

“The BBI not only unlawfully takes over the functions of IEBC but also allocates constituencies in violation of constitutional principles set out in Article 89 which IEBC is obliged to adhere to in executing its mandate,” said Judge Matheka. 

Further, they noted that President Uhuru Kenyatta could not be sued during his tenure as the Head of State.

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“Criminal proceedings cannot be taken against the President during his tenure as far as legal proceedings are concerned,” said Mwita. 

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