In a huge blow to President Uhuru Kenyatta, Kenya’s judges have once again blocked a government-backed plan to make fundamental changes to the constitution.
The Supreme Court on Thursday stopped Kenyatta’s divisive bid to make sweeping constitutional changes through the Building Bridges Initiative (BBI), which opponents say was an attempt to widen his powers.
His estranged deputy and presidential candidate William Ruto has charged that the changes would have led to an all-powerful presidency, while Mr Kenyatta argued the proposal would promote power-sharing among competing ethnic groups.
Supreme Court judges said the president had acted unlawfully when spearheading the reforms, known as the Building Bridges Initiative.
They said it should have been led by citizens – not a sitting head of state. In a majority judgment, the Supreme Court, whose ruling is final, upheld a finding by the lower courts that Mr Kenyatta initiated the changes through a constitutional provision exclusively reserved for ordinary citizens.
The judges ruled that the President was the promoter of the initiative and that the Constitution does not grant him the powers to amend it through a popular initiative.
Six of the seven members of the court said it was wrong for the President to initiate BBI.
The defeat comes ahead of crucial elections in August.
Mr Kenyatta has already served two terms as president so will not stand in those polls, but had staked his legacy on passing this bill, which he argued would make politics more inclusive.
Among its key proposals was the introduction of a new post of prime minister. There had been speculation that Mr Kenyatta could seek this role should his rival-turned-ally Raila Odinga win the presidency.
Last year, the High Court and the Court of Appeal struck down the proposed constitutional amendments, prompting the government to appeal.
If the BBI amendments had succeeded, they would have led to the creation of 70 new parliamentary constituencies and establish several powerful new posts such as those of a prime minister, two deputies and an official leader of the parliamentary opposition.
The President and Dr Ruto have clashed publicly over the proposals.
Dr Ruto is running for the presidency in the August 9 elections, but Mr Kenyatta is backing his former political foe and veteran opposition leader Raila Odinga, who favours the amendments.
Justice Njoki Ndung’u, in a dissenting opinion, argued there was nothing wrong in Mr Kenyatta initiating the process of amending the law while Isaac Lenaola said there was no evidence the president started the BBI move.
“The whole of this scheme looked to me like it was choreographed to try and force me to get out of government,” Mr Ruto told the BBC earlier this month. “The so-called ‘Building Bridges’ built no bridge.”
Mr Odinga says he is not deterred by the Supreme Court decision and will “protect the interests” of those who backed the reforms.
His previous bid in 2017 saw him narrowly lose to President Kenyatta, amid allegations of fraud and fears of renewed political violence.
A year later, however, the pair agreed a deal, which is the basis of the BBI reforms, while President Kenyatta and his deputy William Ruto have fallen out.
Ruto and Odinga are expected to be the two front-runners in this year’s presidential race.
While many analysts will see Thursday’s ruling as a win for Mr Ruto, the real winners are ordinary Kenyans who have fought throughout from the lower courts to the Supreme Court to defend the country’s constitution from being amended by elites without public participation.
The BBI reforms were touted as a means of rallying the country together but Kenya now finds itself with a deputy leader who opposed the government’s key reform and an opposition leader who championed it.
Thursday’s Supreme Court ruling rejected the government’s appeal against previous court verdicts that found the BBI bill to be irregular, illegal and unconstitutional.
Another element the Supreme Court deemed unconstitutional was the plan to create an extra 70 MPs seats in parliament – which critics had viewed as a self-serving attempt to reward loyal politicians.
The government was, however, allowed to appeal on five other issues which were under consideration by the court. A final judgment will be read out next week.
There was some more good news for President Kenyatta, as the Supreme Court dismissed an earlier judgment by the lower courts which had ruled that he could be prosecuted as an individual.
Mr Kenyatta’s run-ins with the judiciary are no secret. He will leave office in four months’ time having failed in his pledge to “fix” the judiciary which has made numerous judgments against him and his government – most notably the Supreme Court’s annulment of the 2017 election.
Ironically, the country is arguably now more divided than before the BBI initiative.
