By Joab Apollo
In what has sent shockwaves across the country, Kenya’s High Court on Thursday declared as unconstitutional the planned referendum on the Constitution of Kenya (Amendment) Bill, 2020.
The much-touted bill, an initiative of the President Kenyatta and his foe-turned-ally Raila Odinga, Kenya’s former Prime Minister, seeks to alter the country’s governance structure as well as create additional 70 constituencies.
The five judge bench boldly declared that the President has no power to initiate a popular initiative and that he can be sued personally for his onslaught on the Kenyan constitution.
“The president overstretched his powers when he proposed amendments to the Constitution outside his clear mandate.” The judges unanimously ruled.
The watershed ruling is reminiscent of the famous nullification of Kenyatta’s 2017 election by the Supreme Court of Kenya under the leadership of the now retired Justice David Maraga.
It comes at a time disenchanted Kenyans have been calling for the suspension of the Building Bridges Initiative so that the government can firmly deal with the present challenges like the COVID-19 pandemic and high cost of living.
NARC Kenya chairperson Martha Karua, an opponent of the plebiscite said, “Today’s ruling is a great affirmation to constitutionalism and the rule of law.”
According to veteran journalist and political analyst, David Makali, the ruling is a thunderbolt.
“@Kenyajudiciary has re-asserted its role against its systemic emasculation and stood up against Executive erosion of the rule of law” he tweeted immediately after the ruling.
Proponents of the initiative, however, argue that the next battle front is the Court of Appeal and the Supreme Court of Kenya.
“Five Million signatures were collected. 43 county assemblies passed it. National Assembly and Senate passed it with majority. To overturn this will be a judicial coup.” argues prominent lawyer and a close ally to both Kenyatta and Odinga, Donald Kipkorir.
Since he came to power in 2013, Kenyatta’s relationship with the Judiciary has been frosty. While the Judiciary has persistently accused him of ruling by fiat, Kenyatta on the other hand feels that the current generation of Kenyan judges have introduced activism into the judicial arm of the government.
