The BBI Appeal ruling will be delivered today.
A seven-judge bench comprising of Court of Appeal President Daniel Musinga, Justices Hannah Okwengu, Roselyne Nambuye, Fatuma Sichale, Patrick Kiage, Gatembu Kairu, and Francis Tuiyot went on a 50-day retreat to write the ruling.
The judgement will be delivered in open court. Lawyer Evans Ogada had written to the court last week asking for open court since the matter is in public interest.
In a communication to parties earlier this week, the Court of Appeal said only 16 lawyers will be allowed in the court. Lorraine Ogombe, the Court’s Deputy Registrar asked each side should select eight representatives. The limited number is due to the Covid-19 pandemic.
The Appeal followed the May, 2021 declaration of the process to amend the 2010 Constitution as unconstitutional, null and void, by a five-judge bench at the High Court.
A five-judge bench comprising of George Odunga, Jairus Ngaah, Chacha Mwita, Janet Mulwa and Joel Ngugi ruled that the Constitutional of Kenya (Amendment) Bill 2020 could not be driven by the Executive.
The court also unanimously ruled that President Uhuru Kenyatta acted outside his powers by initiating the process of amending the Constitution. “President cannot be an initiator of and an umpire in amendment of the Constitution,” said the court.
“While the effort of uniting the country is to be lauded, in his responsibilities he cannot initiate any move to amend the Constitution contrary to the Constitution. It is not in his power,” the court said.
The judges added: “In reality, BBI was the president’s initiative which is contrary to article 257 of the Constitution. The taskforce that morphed to a steering committee was an unlawful and unconstitutional outfit. It was invalid from the beginning.”
There were nine petitions in total. The petitions focused on the process and whether the President could initiate changes to the basic structure of the Constitution.
It will be interesting to see which way the Appeal goes, as this will potentially shape the direction of Kenya’s politics for many years to come. “Will the court,” poses U.S-based law scholar Prof. Makau Mutua “SPLIT the baby, ANOINT it, or THROW it out together with the bath water? Get your popcorn!”
The ruling will be live on TV47, and our Facebook page (https://www.facebook.com/TV47KE) and YouTube channel (https://www.youtube.com/channel/UC_zA9UIWE1fB-jfFk_DBSYw) from 9am