Uhuru Kenyatta and Raila Odinga's proposal to reach a national referendum to change some articles of the Constitution of Kenya, especially those relating to the figures of the President of the Republic and his deputies and the President of the Council, splitting the two powers, has been definitively rejected by the Court of Appeal of Nairobi.
The so-called BBI initiative has therefore failed, and with it the possibility that the current Head of State, Uhuru Kenyatta, after his second term in office, may still sit in some way at the top of the country, albeit in a different role from the one he has held until now.
The judges of the Court of Appeals have therefore upheld the ruling of the High Court, which in the first instance had declared unconstitutional the BBI (Building Bridges Initiative) because it was not a movement that came from the people, as when a referendum route is taken, but directly from the President, with an obvious conflict of interest.
The judges Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott have established and confirmed that Kenyatta's initiative, to which also the former opposition leader Raila Odinga had adhered, with the idea of being elected President of the Council with the approval of Kenyatta himself, who would serve as President of the Republic, risked subverting the basic doctrine of the Constitution of Kenya, already amended in 2010.
"The BBI steering committee had no constitutional mandate under Article 257 of the Constitution. This was a move initiated by the political elite, not by the people of Kenya," ruled Justice Musinga, who headed the seven-man law pool.
"The amendment of a country's constitution should be a sacrosanct endeavor within the laws of that country," Musinga continued, "I find that the amendment was not done by popular initiative and in accordance with the national principles and values enumerated in Article 10.
The president of the Court of Appeals added that any amendment that fundamentally alters the constitution is not a normal constitutional amendment but would lead to the dismemberment of the constitution.
The presidential candidate Raila Odinga had already stated, last Thursday, that in case of confirmation of the ruling of unconstitutionality of the BBI would not appeal to the Supreme Court. According to Odinga it will be possible to return to ask for a referendum, restarting the BBI process in a constitutional manner, after the elections of August 2022.
So now the scenarios that we have already outlined in previous articles on the issue are opening up: the candidates for the Presidency of Kenya, in addition to Odinga, will be the current Vice-President William Ruto and probably one of the senators belonging to the OKA coalition, which includes Gideon Moi, son of former President Daniel Arap Moi.