BBI:Court stops IEBC from facilitating referendum to counties


High Court has temporarily stopped the Independent Electoral and Boundaries Commission  from presenting the constitutional amendment Bill 2020 to the county assemblies for deliberation.

In the ruling delivered by a five-judge bench, the judges believed that it is in the public interest that appropriate conservatory orders be granted pending the hearing and determination of seven petitions challenging the process.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita ruled, “Consequently, we hereby order that a conservatory order be and is hereby issued restraining IEBC from facilitating and subjecting the Constitution Amendment Bill 2020 to a referendum or taking any other action to advance the constitution amendment bill 2020 pending the hearing and determinate of the consolidated petitions.”

The Petition was filed by Economist David Ndii and four other  activists and was later consolidated with six other petitions which include one by the Thirdway Alliance. 

The Judges noted that they had powers to intervene even at the tail end of the process. 

“The court has the requisite jurisdiction to declare the actions of County Assemblies and Parliament unconstitutional and invalid if the process was not followed,” ruled the Judges .

Ndii filed the petition alongside Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei. They have sued the Chief Government Advisor, Speaker of National Assembly Justin Muturi, Speaker of Senate Ken Lusaka and the Independent Electoral and Boundaries Commission.

The petitioners accuse Parliament of intending to pass laws that alter the basic structure of the Kenyan Constitutional foundation claiming that Parliament lacks clear parameters to guide it on basic structure amendments in the exercise of authority.

“In the absence of clear guideposts to define the scope of Parliament’s authority to amend the Constitution, Parliament appears to adopt the approach that it enjoys an unlimited authority, a carte blanc, to consider any and all amendments to the Constitution,” says the five in court documents.

Through the Law Society of Kenya president Nelson Havi, the petitioners aver that Chapter One of the Constitution on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on The Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter 10 on the Judiciary, which BBI intends to rely on cannot be amended.

“The recent developments in the country’s legislative history confirm a threatened abrogation, contravention and violation of Chapters One, Two Four, Nine and 10 and in particular Articles 256 and 257 of the Constitution by the respondents,” says the petitioners.

Third way alliance in its petition claims there was significant development in the referendum Bill following a press statement from the commission certifying the constitutional amendment bill had  met the requisite  threshold having been supported by  over 1000 registered voters  and was submitting the bill to each county for consideration .