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Kenya: Court upholds illegality of President Uhuru Kenyatta's constitutional review

In this file photo taken on March 13, 2019 Kenyan President Uhuru Kenyatta speaks as he gives a joint statement with the French president during an event in Nairobi   -  
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LUDOVIC MARIN/AFP or licensors

Kenya politics

Kenya's Court of Appeal on Friday upheld the illegality of the constitutional review process launched by President Uhuru Kenyatta, which has seen his plans thwarted less than a year before the presidential election.

The reform, dubbed the "Building Bridge Initiative" (BBI), aims to amend the 2010 constitution - which established a presidential system - to create, among other things, a post of prime minister, two deputy prime ministers and a leader of the opposition and increase the number of seats in parliament.

But "the president does not have the power under the constitution to initiate constitutional amendments. A constitutional amendment can only be initiated by Parliament (...) or by popular initiative," said presiding judge Daniel Musinga at the conclusion of the more than ten hours of reading of the ruling.

The head of state may be subject to civil proceedings for illegally initiating this process, the seven judges also ruled.

The BBI has been a source of growing controversy since its launch on November 27, 2019.

President Kenyatta says the constitutional review is meant to mitigate the current "winner take all" system that has caused post-election conflicts throughout the country's history.

But critics see it as a ploy by the head of state, who is not allowed to run for a third term in the August 2022 election, to stay in power as prime minister.

Some suspect a power-sharing deal with his former main opponent, Raila Odinga.

After the post-election violence of 2017, the two opponents began an unexpected rapprochement, embodied by a handshake that remained famous as "The handshake" in March 2018.

The first of the opponents to the text is William Ruto, vice president since 2013 of Mr. Kenyatta, who had endorsed him as his successor for 2022.

Since the rapprochement with Raila Odinga, he sees himself increasingly marginalized from power.

- Before the Supreme Court? -

On May 11, Parliament approved the bill, which was then to be put to a referendum.

But two days later, a Nairobi court ruled that the process was illegal, stating that such a constitutional review could not be initiated by the president.

Uhuru Kenyatta denounced an "attempt to block the will of the people. The government appealed.

BBI supporters may file a final appeal to the Supreme Court.

Raila Odinga announced this week that he would not challenge an unfavourable decision by the Court of Appeal.

"We don't want to waste any more time by going to the Supreme Court. We will fully concentrate on the elections," he said on a radio station Wednesday.

In a tweet posted minutes before the decision was announced, he said that "the parties involved will each make their own decisions on how to proceed based on the decision that was handed down today."

- Strategies -

Subject to an appeal to the Supreme Court, this court decision allows the election process to continue as planned.

But it will change the political strategies and maneuvers in the 11.5 months leading up to the first round on August 9, 2022.

The BBI offered the possibility of coalitions between parties. negotiations had begun, with the new executive positions and 70 new constituencies in the BBI at the heart of the discussions.

"It could be more difficult to reach such alliances before the elections if the BBI is not on the table and if these new posts have not been created," Nic Cheeseman, a professor at the University of Birmingham (UK), told AFP.

For many observers, this ruling also establishes a certain independence of the judiciary from the executive.

In September 2017, the Supreme Court overturned the results of the August 8 presidential election, in which incumbent Uhuru Kenyatta came out on top.

This decision, a first in the history of the continent, soured relations between the judiciary and President Kenyatta, who was nevertheless re-elected (98.26%) a few weeks later in a new election boycotted by his rival Odinga.