The Appellate judges poked holes into the whole BBI process, accusing its promoters of failing to follow the right procedure.
Justices Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott found that the process undermined the doctrine of the basic structure of the Constitution of Kenya 2010.
In the day-long judgment delivered on Friday, August 20, the judges outlined three major thematic areas that were highly contested including the basic structure doctrine, popular initiative and public participation.
The Court of Appeal President, Justice Daniel Musinga and his colleagues, noted that President Uhuru Kenyatta was the initiator of the BBI and that BBI was initiated by the political elite.
“The BBI Steering Committee had no constitutional mandate under Article 257 of the Constitution. This was a move initiated by the political elite, not by the people of Kenya,” Justice Musinga ruled.
He further noted that the proposed duties of the Judiciary Ombudsman, whose allegiance would be to the President as he would be the appointing authority, would make the holder a terror to judicial officers including the judges and magistrates.
Justice Musinga, who was the last presenter in the judgment, agreed with his fellow judges that transparency was required and civic education on the BBI should have been done properly. He added that public participation is part of the Kenyan Constitution and amendments being made must include public participation.
“Amendment of a country’s constitution ought to be a sacrosanct undertaking in compliance with the country’s laws. I find the amendment was not by popular initiative and in accordance with the national principles and values enumerated in Chapter 10,” he stated.
The CoA President added that any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment. It amounts to the dismemberment of the constitution.
He also noted that the promoters of the amendment Bill posted an English version of it on the internet and did not cater for Kenyans who do not speak English.
“Article 7(1) of the Constitution says that the national language of the republic is Kiswahili while Article 7(2) provides that official languages are Kiswahili and English,” he explained.