The High Court has declared unconstitutional the Building Bridges Initiative (BBI) and the Constitutional Amendment Bill 2020.
In a verdict delivered by a five-judge bench in Nairobi this evening, the court has said the whole BBI did not follow the law from the start.
In the unanimous decision, the judges – Joel Ngugi, George Odunga, Jarius Ngaah, Janet Mulwa, and Chacha Mwita – argued that only the people can begin the popular initiative route to change the Constitution and not President Uhuru Kenyatta or his government.
They faulted the Head of State for misusing public resources to popularise an unconstitutional process.
Judge Joel Ngugi said the Head of State is not immune to prosecution while in power, saying he can still be sued as Mr Uhuru Kenyatta.
In the long judgment, it was also highlighted that the electoral commission cannot hold a referendum as currently constituted, as it only has three commissioners instead of a minimum of five as required by the law. It was ruled that any exercise done or decision made by IEBC in regard to the BBI is unlawful.
And in what appeared as a big win for Deputy President William Ruto and his brigade, the court said the architects of BBI should have allowed a multi-choice referendum instead of a single question plebiscite.
President Kenyatta, ODM Raila Odinga, and their allies dismissed Dr Ruto’s call for a multiple-question referendum. South African music icon Lucky Dube’s song, Nobody Can Stop Reggae, has been their unofficial campaign anthem.
Critics of the BBI document had filed in court at least 17 questions, which they made the process illegal.
Of the 17, the judges said all of them were valid, as they exposed the BBI to legal issues.
Stay on Litkenya.com for continued analysis of the ruling and any new developments.