Justices Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita declared the BBI bill as null and void as it had flouted several articles of the Constitution.
While reading the judgement, Justice Ngugi stated that the BBI bill should not have been presented as a wholesome document for the referendum but should have been split to allow Kenyans to vote on separate issues.
“Article 255 (1) of the Constitution yields a conclusion that each of the proposed amendment clauses ought to be presented as a separate referendum question,” he declared.
DP Ruto had on several occasions urged the BBI Taskforce to consider the multiple referendum questions, stating that some issues were contentious and thus tarnished the whole document. Ruto opposed political parties selecting commissioners for the Independent and Electoral Boundaries Commission (IEBC).
He also opposed the creation of a security council to be chaired by the Interior Cabinet Secretary, saying it will erode the independence of the police as provided for by the Constitution.
â€œThe 2010 Constitution was very clear that the police must act independently. To recommend that we will have a security council chaired by a CS is a derogation from the independence of the police,â€ he said.
The judges while making their ruling further accused President Uhuru Kenyatta of contravening the law by initiating a referendum, yet the BBI bill was not a popular initiative.
“The power to amend the Constitution through referendum route under Article 257 is reserved for the private citizen (Wanjiku only), neither the President nor any state organ is permitted under our Constitution to initiate a constitutional amendment using the popular initiative route.
“Parliament, County Assemblies and any other state organs cannot under the guise of consideration and approval of a popular initiative to amend the Constitution under Article 257 of the Constitution alter or amend constitution amendment bill presented to them,” they ruled.
This was aligned with Siaya Senator James Orengo’s plea to his colleagues to desist from amending the BBI bill before it proceeded to the referendum. Orengo’s sentiments sparked tension within his party, ODM, whose members accused him of planning to sabotage the project.
He was further accused of planning to betray his party leader, Raila Odinga. Orengo had warned that “There is a problem when people think that you have a bill to amend the constitution through a popular initiative, then it is by the people. No. It is by the promoters. A promoter can be one person who needs one million people to sign.
“It is a bill by promoters and the million people is a condition precedent before the bill is taken to IEBC. So I think you should think of the process, the popular initiative not by the people. It is only a popular initiative because you go through a certain threshold.â€