David Ndii & Others V. Attorney General & Others also known as the BBI Judgement was a landmark ruling made in the Kenya High Court on 13 May 2021, declaring an injunction on Kenya's Independent Electoral and Boundaries Commission (IEBC) from proceeding with President Uhuru Kenyatta's and retired Prime Minister Raila Odinga's Building Bridges Initiative. The five-judge bench was to determine seventeen questions raised on the petition against the BBI Process.
On 18 March 2018, President Uhuru Kenyatta and retired Prime Minister Raila Odinga had what is now referred to as the "handshake", an initiative which they termed as being "towards a united Kenya". After the famous "handshake" with Mr. Odinga, the President appointed the Building Bridges to Unity Advisory Taskforce (BBI Taskforce) comprising 14 committee members and 2 joint secretaries through Gazette Notice No. 5154 of 24 May 2018.
In a unanimous decision, the bench, led by Justice Joel Ngugi, declared the process unconstitutional and stopped the IEBC from conducting a referendum on the Constitution of Kenya (Amendment) Bill. The bench also ruled that the president had acted in excess of his powers when he initiated the process of amending the constitution through the Building Bridges Initiative (BBI). The bench described the BBI process as "a presidential initiative guised as a popular initiative", and allowing it to be sustained would amount to having the Head of State as promoter and referee of his own initiative. "In reality, BBI was the president's initiative which is contrary to article 257 of the Constitution. The task force that morphed to a steering committee was an unlawful and unconstitutional outfit. It was invalid from the beginning," said the judges. The court also held that a sitting president can be sued personally in civic proceedings if they act against the constitution for his actions or inaction. According to the court, President Uhuru Kenyatta should have entered into appearance in the petition because it was a civil case, instead of the Attorney General responding on his behalf.
Background
Mr. Uhuru Kenyatta and Mr. Raila Odinga had just come off a hard-fought and intensely contested presidential election in 2017 in which they were the main contenders. The first round of presidential elections was held on 8 August 2017 and was characterized by allegations of vote fraud leading to its overturning by the Supreme Court. The repeat elections were held on 25 October 2017 but Mr. Raila Odinga boycotted - citing lack of electoral reforms, handing the victory to the incumbent.
The political climate remained charged with the opposition, led by Mr. Odinga, calling for a boycott of products and services from companies seen as beneficiaries of the marred electoral process. These boycotts and demonstrations, which could sometime turn violent, continued and culminated with a mock swearing in of Raila Odinga as the "Peoples President" on 30 January 2018. On 9 March 2018, President Uhuru and Mr. Raila Odinga brokered a deal to end the tension symbolized by a handshake outside Harambee House. During the launch of the BBI Report, Mr. Odinga revealed that they held a 19-hour talk with President Uhuru to deliberate on how to put an end to the tension. The president and Mr. Odinga had spent an hour alone at State House before they had "actual talk". They spent most of the night discussing the details of the agreement, inviting lawyers in the end to compile and draft the deal before the handshake was made public.
It is on these grounds that the President started an initiative which he described as being "towards a united Kenya." After the famous "handshake" with Mr. Odinga, the President appointed the Building Bridges Unity Advisory Taskforce comprising 14 committee members and 2 joint secretaries on 24 May 2018. The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building a lasting unity in the country.
The BBI Taskforce came up with an interim report in November 2019. On 3 January 2020, through Gazette Notice No. 264, the President appointed the Steering Committee (BBI Steering Committee) on the Implementation of the Building Bridges comprising 14 members and 2 joint secretaries. The committee was led by Garissa County Senator, Senator Yusuf Haji. In November 2020, the Constitution of Kenya (Amendment) Bill, 2020 was introduced in parliament.