Court To Rule On BBI Referendum Petitions Tomorrow

by Lawyer Alex
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The ruling on the petitions seeking to stop the IEBC from conducting a referendum to implement the BBI Bill is set for Thursday.

The judgement will be delivered virtually at 2.30pm, deputy registrar at the High Court’s Constitutional and Human Rights Division Njeri Thuku said on Tuesday.

The matter is before Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka.

Their judgement would determine the next course of the Constitutional of Kenya (Amendment) Bill, 2020 – which Parliament is set to conclude a vote on on Tuesday.

A three-judge bench of the High Court had stopped the electoral agency from conducting any preparatory activities for the referendum until it delivers the judgement.

The High Court also stopped the assent to the BBI Bill by the orders, which are in force until the judgment is delivered.

Building Bridges Initiative promoters are planning for a referendum in June or latest August, if all goes in their favour at the courts.

Several parties in the case confirmed receipt of the notice on Tuesday.

Two petitions were filed at the Supreme Court of Kenya and eight others at the High Court challenging the BBI process and the attendant Bill.

In November 2020, Nandi and Kericho county assemblies requested for an opinion on interpretation of articles 255 and 257 of the Constitution.

The articles define the procedure of amending the Constitution, the same issue that was central in a petition by Makueni Governor Kivutha Kibwana filed a month later.

The Supreme Court declined to give an advisory opinion on the two cases on March 16, 2021, holding that the High Court had seized of the matters.

“We don’t see how the High Court can determine the issues before it without venturing into similar questions now pending before us on the two references,” the court ruled.

The High Court, in its jurisdiction, has consolidated the eight petitions and of which it is expected to determine in the slated judgement date.

Among the petitions was one by economist David Ndii and others challenging the constitutionality of the BBI Bill.

They want the courts to declare the bill an unconstitutional attempt to amend the Constitution in respect of the structure of the Executive, Parliament, and the Judiciary.

Kenya National Union of Nurses also sued the BBI Steering Committee for omitting the Health Service Commission as they had proposed in their report of October 2020.

The Thirdway Alliance Party has since applied to withdraw its petition that sought the courts to declare that the BBI process is not a popular initiative.

An entity identified as 254Hope also sought to be answered whether the national executive or any state organ can commence a popular initiative.

The petitioners sought the invalidation of the entire process resulting in the publication, approval, and passing of the Constitution of Kenya (Amendment) Bill, 2020.

Two petitioners Justus Juma and Isaac Ogola also raised the question of whether the creation of 70 additional constituencies was unconstitutional.

They want the courts to annul the creation of seventy constituencies as proposed in the second schedule of the bill.

A petitioner Morara Omoke also sued Raila Odinga and the BBI promoters on whether the bill can be subjected to a referendum before a nationwide voter registration.

He also sought to know whether the use of public funds by President Uhuru Kenyatta and Raila in the facilitation of the BBI process constitutional.

The petitioner asked the court to invalidate the process while Isaac Aluochier asked the court to rule on whether the President has power to initiate an amendment of the Constitution.

Muslim for Human Rights (Muhuri) also sued questioning whether the verification of signatures could be undertaken without an enabling legal framework in place.


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