Judge Daniel Musinga
By Kisasa News Staff
The Court of Appeal on Friday, August 20 ruled that President Uhuru Kenyatta’s attempt to change the Constitution through the BBI process was unconstitutional.
A majority of the judges ruled that Kenyatta is not legally allowed to initiate changes to the Constitution through the popular initiative, an avenue reserved for the common mwananchi.
Justices Roselyn Nambuye and Hannah Okwengu observed that delimitation functions belong to the IEBC, and the agency should, therefore, be actively involved in the process. The BBI proponents did not consult the IEBC while suggesting an increase to the number of constituencies from 290 to 360, the jurists said.
A majority of the judges further ruled that the Constitution of Kenya has a basic structure, which should be protected, and that proposals to change the structure must attract overwhelming support by the citizens.
Support, the judges observed, can take the form of a successful Referendum, but before the Referendum is held, adequate public participation must be conducted.
Appellate court president Daniel Musinga said a rigorous Constitutional change procedure – similar to that used to adopt the 2010 Constitution – should have been observed while pushing the BBI reforms.
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