The Court of Appeal Throws Out BBI Appeal Case

Today makes history as a day that the Court of Appeal has appended its valor in history as it has shown that the judiciary is willing and able to take a concrete stand on a highly politicized matter

The Court of Appeal Throws Out BBI Appeal Case
The Court of Appeal upheld the high court's ruling against the BBI. Source: BD.

The Court of Appeal has thrown out the BBI Appeal Case in a move that has left the country jubilant and politicians aghast. The Court of Appeal in Kenya has made history by standing firm with the High Court’s decision that ruled that BBI was unconstitutional. The decision was made by a panel of Judges including some that had seen their approval and appointment to join the Supreme Court denied unconstitutionally.

The president, his excellency Uhuru Kenyatta, had wrongfully refused to appoint the judges and is still yet to appoint the four of them, some of who presided over this appeal. The Court of Appeal ruled that the Building Bridges Initiative or BBI, was unconstitutional and it upheld the High Court’s shooting down of the BBI.

The Court of Appeal Makes History

Today makes history as a day that the Court of Appeal has appended its valor in history as it has shown that the judiciary is willing and able to take a concrete stand on a highly politicized matter, and stand by it. The BBI Appeal Case had been brought forward by the proponents of the BBI, or the Constitutional Amendment Bill of 2020 after the High Court ruled the initiative unconstitutional.

Kenyans have won in a major way in this battle and the highly satirized ‘reggae’ has been brought to a standstill. Politicians, including the right honorable former Prime Minister, Raila Odinga, and the President had seen tell tales of this decision and had made concession statements beforehand. One can argue that they knew they did not have a case to make and that their BBI was a sham. So much for “nobody can stop reggae!”

No Constitutional Mandate for the President to Change the Constitution

The Court of Appeal reiterated that the president has no mandate under his constitutional role to change or amend the constitution in any way. It also made clear that the Independent Electoral and Boundaries Commission (IEBC), lacked quorum despite having the composition of 3 commissioners as required by law. The Court of Appeal made a point to make clear that composition does not necessarily mean quorum, even if the seven judges were not unanimous on the particular tenet.

The judges, however, unanimously supported the stance that the President cannot and should not, under his constitutional mandate, ignite or commence a popular initiative or one that would amend the constitution. As the High Court had said, the constitution is sacrosanct and cannot be amended by the President. The court also debunked the fallacy that the popularization of the BBI and its source was the BBI Secretariat and not the President himself. The Judges also condemned tenets of the BBI Amendment Bill such as introducing an ombudsman for the judiciary citing that it would be a way to tame the judiciary and infringe on its independence as provided for by the constitution.

Court of Appeal: Yes, The President can be Sued

Even more heartbreaking for politicians, the court was very clear that the President could be sued on a constitutional level for breaking the law and going against the constitution. Three of the seven judges had a different view on the matter but four superseded them and took the highly courageous stance. This particular tenet is sure to send shockwaves to the very top leadership of Kenya.

Kenyans have been given justice, in every shape and form, with the Court of Appeal’s ruling. Supporters of the Deputy President, William Ruto are sure to celebrate what looks and feels to them like a win. However, one would argue that the BBI defeats itself and was bound to fail from the beginning. Experts and analysts concur that the biggest winner today is the judiciary and ordinary Kenyans who had seen funds and a lot of political bigotry directed towards a personal initiative of the President and his former rival turned ally, Raila Odinga.

Ruto Dancing on the BBI's Grave

Ruto’s camp may be jubilant today but analysts say that his team could just be dancing on the BBI’s grave unaware of the political reiteration that the Court of Appeal’s decision could initiate. The President and the former Prime Minister have been meeting leaders from the now-dissolved National Super Alliance (NASA) coalition seeking to join the leaders who are now sailing on a new ship termed ‘One Kenya Alliance.’ The meetings are seen as a way to persuade Kalonzo Musyoka of Wiper, Musalia Mudavadi of Amani National Congress (ANC), Ford Kenya’s Moses Wetangula, and Kanu’s Gideon Moi to join hands with Raila Odinga to mount an anti-Ruto alliance.

One Kenya Alliance and the proposed coming together of these leaders has been marred with concerns and disagreements on who would be the flag bearer in the coming General Election in 2022. The possible coming together of the leaders has now been complicated by the throwing out of the BBI Appeal Case by the Court of Appeal as the Prime Minister and Deputy Prime Minister’s positions that the BBI was seeking to create are no longer on the table. The president has been dealt a huge blow.

Grandmullah's Views on Uhuru Kenyatta's Legacy

According to Ahmednasir Abdullahi, a renowned lawyer, the president’s legacy has been forever tainted by the BBI and its failure. The fact that the president even sought to change the constitution and present more positions of power to his allies and the allies of Raila Odinga, will remain a dark spot in his legacy. Lawyer Ahmednasir concurs that the President should focus on his development agenda, now failed and in shambles, and what he can do to better the lives of Kenyans with the time he has left.

President Kenyatta’s legacy is something of a dark cloud even with the now refuted and condemned calls to postpone the 2022 General Elections slated to be held on the 9th of August 2022. The BBI is now in the rear mirror and even as some ‘interested parties’ may forward an appeal to the Supreme Court, experts believe that the spirit of the BBI is dead and has been extinguished.