Kiraitu Murungi: High Court lost focus on the BBI’s big picture

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Meru Governor and Harvard Law School graduate Kiraitu Murungi has faulted the recent High Court ruling, declaring the BBI process unconstitutional, saying the High Court lost the initiative’s bigger picture. In a statement on Sunday, Murungi who is also an advocate of the High Court highlighted a number of benefits anchored in the BBI and some of the critical problems that need be fixed before 2022.

”It should no longer be a matter of commas and paragraphs. The High Court lost focus on the BBI’s big picture. We need to address our perennial cycles of electoral violence which has made democracy in Kenya a primitive, dangerous game. We need to enhance inclusiveness and uplift the poor struggling Kenyans. We need the 35% promised by BBI to the Counties. We need to implement the two-thirds gender rule,” the governor wrote.

Even though the governor hailed the judges for making an independent decision, he expected them to be progressive and offer judicial solutions to some of the contradictions which have popped up in two High Court decisions over the BBI.

”Even as we celebrate them for their wisdom in legal technicalities, we expect them to be progressive and give judicial solutions to these contradictions. It is my hope and prayer that as we go on appeal, the Court of Appeal will rise above narrow legal and procedural cobwebs, and consider BBI in its broad canvas, in a jurisprudence to advance the fundamental interests of Kenyans,” he added.

On Thursday last week, a High Court bench comprising Justices Ann Ngugi, George Odunga, Chacha Mwita, Justice Ngah, and Justice Matheka declared the constitutional amendment process illegal, saying President Uhuru Kenyatta had violated the law by spearheading it.

Here are the orders.

1. A declaration is hereby made that civil procedures can be initiated against a sitting President or person performing functions of the President during tenure of office in respect to anything done contrary to the Constitution.

2. A declaration is hereby made that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through parliamentary initiative under Article 256 of the Constitution or through popular initiative under article 257 of the Constitution.

3. A declaration is hereby made that the steering committee on implementation of the Building Bridges Initiative (BBI) task force to a united Kenya report established by the President vide gazette notice number 264 on January 3, 2020 and published in a special gazette issue of January 10, 2020 is an unconstitutional and unlawful entity.

4. A declaration is hereby made that being unconstitutional and illegal entity, the BBI Steering Committee has no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.

5. A declaration is hereby made that the entire BBI process culminating to launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of people’s exercise of sovereign power.

6. A declaration is hereby made that article 257 sub Article 10 of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people.

7. A permanent injunction is hereby issued restraining the Independent Electoral and Boundaries Commission (IEBC) from undertaking any processes required under Article 257 (4) and 257 (5) in respect of the Constitution of Kenya Amendment Bill, 2020.

8. The prayer for an order that Mr Uhuru Muigai Kenyatta (refund) the public funds used in the unconditional change process… is declined.

9. The prayer for the order that the Attorney-General and other public officers who have authorised the use of public funds in the unconstitutional constitutional change process promoted by the steering committee (refund) the funds is declined.

10. A declaration is hereby made that Mr Uhuru Kenyatta has contravened the chapter six of the Constitution and specifically, article 3(1)(a) (1) while initiating and promoting a constitution change process contrary to provisions of the Constitution on amendment of the Constitution.

11. A declaration is hereby made that the entire constitution change process promoted by the BBI Committee is unconstitutional, null and void.

12. A declaration is hereby issued that the Constitutional Amendment Bill, 2020 cannot be subjected to a referendum before the IEBC conducts a nationwide voter registration.

13. A declaration is issued that the IEBC has no quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the second schedule of the Act for purposes of carrying out its business relating to the conduct of the proposed referendum, including verification of signatures in support of the Constitutional Amendment Bill, 2020 under article 257(4) of the Constitution submitted by the Building Bridges Initiative secretariat.

14. A declaration is hereby issued that at the time of the launch of the Constitution Amendment Bill, 2020 and collection of endorsement signatures, there was no legislation governing collection, presentation and verification of the signatures nor a legal framework to govern the conduct of a referendum.

15. A declaration is issued that in absence of the legislation or legal framework to govern collection, presentation and verification of signatures and conduct of a referendum in the circumstances of this case renders attempt to amend the Constitution of Kenya through the amendment bill 2020 flawed.

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