Kenya’s Supreme Court Blocks President’s Push for Constitution Change


(Back Row): Chief Justice Martha Koome (C) flanked by Dep CJ- Philomena Mwilu (3L) Justice Smokin Wanjala (2L), Justice Isaac Lenaola (L), Justice Mohamed Ibrahim (3R), Justice Njoki Ndungu (2R) and Justice William Ouko (right) during a hearing at the Supreme Court in Nairobi on March 31, 2022. AFP

But he left open the possibility that the reforms – commonly known as the Building Bridges Initiative (BBI) – could be resubmitted by parliament or by other means, as long as the president did not intervene in the changes.

“The Constitution Amendment Bill of 2020 is unconstitutional,” the Supreme Court said in a majority decision, ending a nearly two-year legal battle over the proposals.

“The president cannot initiate constitutional amendments or changes by popular initiative under Article 257 of the constitution,” he said.

The reforms would have expanded the executive and increased the number of parliamentary seats, in the biggest change to Kenya’s political system since the introduction of a new constitution in 2010.

The move has left the East African nation’s political elite divided.

Kenyatta had argued that the change would make politics more inclusive and help end repeated cycles of election violence.

Thursday’s ruling came after the High Court and Court of Appeal ruled against proposed amendments last year.

The appeals court even said Kenyatta could be sued in civil court for initiating the process.

But the Supreme Court ruled unanimously against this idea.

“Civil suits shall not be instituted in any court against the president or any person exercising the functions of the office of the president during his tenure in respect of anything done or not done under the constitution,” he said. -he declares.

BBI critics – including William Ruto, Kenyatta’s former deputy – say it is little more than a simple power grab by a two-term president who cannot run for a third time.

The reform agenda has spurred speculation in recent years that Kenyatta was seeking to stay in power by creating the post of prime minister as part of the BBI.

“A Deferred Dream”

Ruto, 54, was initially nominated by Kenyatta as his successor but found himself sidelined after a shock 2018 pact between the president and his former nemesis Raila Odinga, who have long clashed at the ballot box.

The couple’s fiery pursuit of the BBI since 2018 has sparked speculation that Kenyatta could assume the new post of prime minister under a power-sharing deal if Odinga, 77, wins the presidency.

Earlier this month Kenyatta, 60, endorsed Odinga, who will compete with Ruto for the country’s top job.

Thursday’s session lasted more than six hours, with each of the seven judges, including Kenya’s first female Chief Justice, Martha Koome, reading their respective rulings on the case.

Analysts say the decision will shake political alignments among smaller parties, which are weighing their options ahead of presidential and parliamentary elections just four months away.

Already, new alliances are forged, with a view to sharing the spoils during the election period.

The BBI proposals are likely to be revived in other ways and will fuel the election campaign, said Macharia Munene, professor of history and international relations at the United States International University in Nairobi.

“Each political camp has something to claim. The question is, being the politicians that they are, what will they do to trumpet and say they have won,” he told AFP.

Odinga responded to the verdict by writing on Twitter, “We will not stop deliberations on the way forward which will decide a future course of action.”

Although the decision is likely to weaken Kenyatta’s hand ahead of the August elections, Munene said the pair are likely to promise to bring the BBI back later and use it to secure alliances as Election Day approaches.

“A lot of people will be told ‘vote for us because we’re going to increase the number of positions’.”

Kenyatta has already vowed to see the constitutional changes instituted in his lifetime.

“Although it has encountered some legal hurdles, I can only say that BBI is just a postponed dream,” Kenyatta said last December.

“One day, one day, this will happen, because the country cannot survive ethnic majoritarianism and exclusion, just as it cannot survive unfair and biased representation. It is a design flaw that we must correct,” he said.

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