In a ruling to determine cases presented before the high court concerning the legality of the constitutional amendment bill 2020, a bench of five judges determined that the entire process was conducted unconstitutionally and that the constitutional amendment bill cannot be subjected to a referendum before the body in charge of elections – IEBC- conducts nationwide registration exercise.
“The basic structure and eternity clauses can only be amended through the primary constituent power which must include four sequential processes that include civic education, public participation and collection of views, constituent assembly debate and finally a referendum.” The judgment further reads that, “the constitutional amendment bill cannot be subjected to a referendum before IEBC conducts nationwide exercise.”
In the judgment delivered by justices; Teresia Mtheka, Joel Ngugi, George Odunga, Jairus Ngaah and Chacha Mwita faulted President Uhuru Kenyatta for failing to respect, uphold and protect the constitution and to those extents, failing the leadership and integrity test which is the threshold set in the constitution.
According to the judgment delivered on Thursday night, the president can be sued in his or her personal capacity during his or her tenure in office for anything done contrary to the constitution citing that, “The president does not have authority under the constitution to initiate charges to the constitution amendment which can only be initiated through a parliamentary initiative.” Reads part of the judgment.
Delivering that judgment, The BBI secretariat was declared illegal as it was initiated by the president. All action taken by the Independent Electoral and Boundaries commission were declared null and void since IEBC did not meet quorum for an effective decision.
Following this judgment, the Attorney General Poul Kihara Kariuki has countered the decision made by the 5 justices.
According to Solicitor general Ken Ogeto, the AG who was the former boss in the court of appeal was directly authorized to appeal against the decision requesting that the court of appeal to clarify and interpret the meaning of ‘public interest’ as the bill garnered three million signatures and was passed at county assembly, the national assembly and also the senate.