President Uhuru Kenyatta failed to save his troubled bid for a constitutional referendum at the Court of Appeal on Friday, the latest blow to his original succession plan to expand the government and make it easier for the country’s ethnic political elite to negotiate pre-election coalition deals.
A majority of the seven appeal judges upheld the High Court decision that in May blocked the vote, saying its promotion under the government-backed Building Building Initiative (BBI) was unconstitutional.
They cited a number of breaches, including a lack of quorum at the electoral commission when it verified referendum endorsement signatures and an attempt by the promoters to amend some protected clauses in the Constitution.
The BBI judgment extends the string of losses President Kenyatta has suffered in the courts during his second term in office, beginning with the Supreme Court overturning his re-election victory in 2017.
Former Prime Minister Raila Odinga, the co-architect of the BBI with President Kenyatta and a petitioner in the appeal case, had on Wednesday said that he would not challenge the judgment at the Supreme Court.
Mr Odinga’s remarks on a morning radio talk show suggest that the two leaders are keen to move on from the latest setback to one of the key quests of their cooperation agreement, popular as the Handshake, in March 2018.
In a litigious country where a liberal Constitution in 2010 opened the floodgates for public interest suits, the matter may still find its way to the Supreme Court.
But in the political arena, the fall of BBI — easily the dominant issue in Kenya’s politics in the past three and a half years — adds to the intrigues of the 2022 election campaigns in which the incumbent is on course to endorse the opposition leader and his bitter rival in the last two disputed polls to succeed him.
President Kenyatta has signalled his intention to back Mr Odinga’s fourth State House bid, overlooking Deputy President William Ruto, who is preparing to run in a new party after falling out over his opposition to BBI.
This week the President continued his efforts to persuade other party leaders in the recently disbanded 2017 Nasa coalition to support Mr Odinga during a meeting in Mombasa, the second in one week.
Appellate court president Daniel Musinga said a rigorous Constitutional change procedure – similar to that used to adopt the 2010 Constitution – should have been observed while pushing the BBI reforms.
Although more than a million voters signed in support of the amendment Bill, it was not demonstrated that the exercise was conducted transparently,” he said.
The judges agreed that President Kenyatta violated the law to initiate the constitutional review.
But in swift enjoinder to the Court of Appeal ruling Mr Odinga said he will respect the judgement and “move on.”
“It is likely that today’s Court of Appeal ruling is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today. But we feel that we have to move on,” said Odinga on statement posted on Twitter.