It is a round one win for renowned Kenyan economist David Ndii and four others who filed a petition challenging the constitutionalism of the BBI process.
This is after the High Court in Nairobi on Monday, November 30 dismissed objections filed by Attorney General (AG) Paul Kihara Kariuki and Parliament, seeking to have the petition filed by the activists struck out.
In the petition, Ndii together with social justice campaigner Jerotich Seii, environmentalist Ikal Angelei, the Institute for Social Accountability (TISA) National Coordinator Wanjiru Gikonyo, and human rights lawyer James Gondi are faulting the push for BBI-driven constitutional amendments.
The activists are challenging why the Building Bridges Initiative (BBI) wants to change the basic structure of the 2010 Constitution.
According to the AG and Parliament, the court had no jurisdiction to hear the case by the five individuals. The two parties insist that the Constitutional Amendment Bill, 2020 had not been presented before Parliament.
In dismissing the objections, Justice Charles Murima said that the five were not out rightly challenging the will of the people to change the Constitution, insisting that the court had to hear the case in full to ascertain if they had presented evidence to warrant the courts intervention.
“My understanding of the petition before the court is that the petition seeks to instead, protect and defend the Constitution. The petition is not aimed at challenging the supremacy of the Constitution or the sovereignty of the people,” ruled Justice Murima.
Ndii and company filed the petition on applicability of theory of Basic Structure of the Constitution, doctrine of Unconstitutional Constitutional Amendments, eternity clauses and limits of constitutional amendment.
Borrowing from the Indian Constitutional Law and Philosophy, it appears that the quartet has taken issue with why the BBI (initiated by President Uhuru Kenyatta and former prime minister Raila Odinga) “wants to change certain aspects of the Constitution which are unchangeable, immutable and so bound up with the fabric of the Constitution itself.”
Justice Murima added that the petitioners are raising serious issues about the basic structure of the Constitution being undermined.
In the case, the Independent Electoral and Boundaries Commission, National Assembly Speaker Justin Muturi, Senate Speaker Ken Lusaka and Attorney General Paul Kihara Kariuki are the respondents.
In filing the petition, the four categorically stated that they want their case certified as urgent and heard by not less than three judges appointed by Chief Justice David Maraga.