WHY BBI WAS REJECTED BY COURT

The Building Bridges Initiative (BBI) was a constitutional amendment bill in Kenya that sought to amend the Kenyan constitution. The bill was proposed by President Uhuru Kenyatta and former Prime Minister Raila Odinga in 2018 as a way to address Kenya's political, social, and economic challenges. However, the bill was rejected by the court in 2021 on several grounds, including:

1. Lack of Public Participation

1.1. Inadequate Consultation with the Public

One of the main reasons why the BBI was rejected by the court was because of a lack of public participation. The court held that the BBI process was not sufficiently inclusive and that the public was not given adequate opportunity to provide input. This is a crucial requirement for constitutional amendment processes, as it ensures that the views of all stakeholders are considered and that the resulting document reflects the will of the people.

1.2. Lack of Transparency

Another aspect of the BBI process that drew criticism was the lack of transparency. The court found that the BBI task force, which was responsible for drafting the bill, operated in a secretive manner and that its deliberations were not open to the public. This lack of transparency raised concerns about the legitimacy of the process and whether it was truly representative of the people's wishes.

2. Unconstitutional Amendments

2.1. Violation of the Basic Structure Doctrine

The court also found that several of the proposed amendments in the BBI bill violated the basic structure doctrine of the Kenyan constitution. This doctrine holds that certain fundamental principles of the constitution cannot be amended, as they are essential to the structure and functioning of the state. The court held that some of the proposed amendments, such as the creation of a powerful prime minister's position, would undermine the separation of powers and the system of checks and balances enshrined in the constitution.

2.2. Unlawful Expansion of Executive Powers

The BBI bill was also criticized for proposing to expand the powers of the executive branch of government at the expense of the legislature and the judiciary. The court found that some of the proposed amendments, such as the creation of a powerful National Executive Council, would concentrate too much power in the hands of the president and would undermine the principle of separation of powers.

3. Lack of Fiscal Responsibility

3.1. Excessive Financial Implications

The court also expressed concerns about the financial implications of the BBI proposals. The bill proposed the creation of new positions and institutions, which would have required significant financial resources to operate. The court held that the government had not adequately demonstrated how it would fund these new entities without compromising other essential public services.

4. Timing of the Referendum

4.1. Premature Referendum

Another factor that contributed to the rejection of the BBI was the timing of the referendum. The referendum was scheduled to be held in June 2021, just a few months before the 2022 general elections. The court held that holding the referendum at that time would be premature and would interfere with the electoral process.

Conclusion

The rejection of the BBI by the court was a significant setback for President Kenyatta and Raila Odinga, who had invested significant political capital in the initiative. The ruling highlighted the importance of public participation, transparency, and adherence to constitutional principles in constitutional amendment processes. It also served as a reminder of the judiciary's role in upholding the constitution and protecting the rights of the people.

Frequently Asked Questions

1. What were the main reasons for the rejection of the BBI by the court?

The main reasons for the rejection of the BBI by the court were the lack of public participation, the lack of transparency, the unconstitutional nature of some of the proposed amendments, the lack of fiscal responsibility, and the timing of the referendum.

2. What is the basic structure doctrine?

The basic structure doctrine is a legal principle that holds that certain fundamental principles of a constitution cannot be amended. This doctrine is intended to protect the core values and principles of a constitution and to ensure that it cannot be easily subverted by a simple majority.

3. Why was the timing of the referendum a factor in the court's decision?

The timing of the referendum was a factor in the court's decision because it was scheduled to be held just a few months before the 2022 general elections. The court held that holding the referendum at that time would be premature and would interfere with the electoral process.

4. What are the implications of the rejection of the BBI for the 2022 general elections?

The rejection of the BBI has significant implications for the 2022 general elections. The BBI had proposed a number of changes to the electoral system, such as the introduction of a runoff election for the presidential race. With the BBI now rejected, these changes will not be implemented, and the 2022 elections will be conducted under the existing electoral system.

5. What is the future of the BBI?

The future of the BBI is uncertain. President Kenyatta and Raila Odinga have indicated that they will appeal the court's decision. However, even if the appeal is successful, it is unclear whether the BBI will be able to garner the necessary support in parliament to be passed.