The proponents of Kenya’s Building Bridges Initiative (BBI) have been dealt a blow by the Supreme Court of Kenya, which ruled that the quest to change the country’s constitution was not procedural.
After the Court of Appeal threw out the BBI push, Attorney-General Kihara Kariuki, the IEBC, and BBI co-principals Uhuru Kenyatta and Raila Odinga filed an appeal at the Supreme Court.
Chief Justice Martha Koome described the 2010 Constitution as “resilient” in the face of 21 failed attempts to change it. She stated that 19 of these attempts were made through Parliamentary initiative, while two were made through popular initiative.
The court found that one of the two popular initiative attempts was made by President Uhuru Kenyatta, who they ruled does not have the authority to initiate constitutional changes through the popular initiative route.
In their statements, Chief Justice Koome, Justices William Ouko, Isaac Lenaola, Smokin Wanjala, and Mohamed Ibrahim stated that the popular initiative route is reserved for Wanjiku and not holders of Executive or Legislative offices.
“As opposed to representative institutions, the popular initiative is supposed to be triggered from below; at the initiative of the citizenry.” “A popular initiative is a form of direct democracy, and direct democracy can only be exercised by the people, not their representatives,” the Chief Justice explained.
The majority of the judges concluded that the Constitution’s basic structure doctrine does not apply in Kenya.
On this contentious issue, Justice Njoki Ndung’u stated, “The basic structure doctrine can only be deduced from our constitutional past.” “Importing basic structure doctrine to Kenya is unnecessary.”
Deputy Chief Justice Philomena Mwilu agreed with Ndung’u.
Justice William Ouko, for one, stated that the 2010 Constitution is “self-regulating.” “The amendment’s limitations must be sufficiently specific and unambiguous,” he said.
All of the judges ruled that a sitting president is immune from civil litigation.
Chief Justice Martha Koome ruled that the lower courts’ judges erred in ruling that President Kenyatta could be sued in civil disputes. “The implication of this (allowing civil suits against a sitting president) is far-reaching, and thus calls for this court to conduct a very careful analysis and consideration,” she said.
“The president’s exercise of public power can be challenged in a court of law by suing the Attorney-General in a Judicial Review or Constitutional petition,” she added.
Justice Isaac Lenaola concurred.
On whether the BBI’s supporters overstepped their mandate by allocating 70 new constituencies, the judges determined that the IEBC’s role was usurped by the BBI’s supporters.
“Directly allocating and apportioning constituencies usurps the mandate of the IEBC, an independent constitutional Commission, [and] effectively removes the possibility of Judicial review of the delimitation,” Koome said, adding that “delimitation of constituencies must be accompanied by a fair and just process.”
On the contentious issue of public participation, there was disagreement.
Proof of adequate public participation was tabled, according to a section of the judges. Another faction claimed that while public participation was demonstrated in some aspects of the Bill, it was lacking in others.
In his decision, Justice William Ouko stated that the burden of proof is on either party in the suit. The proponents should provide evidence that there was public participation, while the opponents should poke holes in the evidence produced by the proponents.
According to Justice Njoki Ndung’u, the appellants established that there was public participation during the BBI roll-out.
According to Justice Smokin Wanjala, there was insufficient public participation in the BBI process.
A process cannot begin with the gathering of signatures. Surely, the people must be signing something – either a draft Bill or a general proposition. As a result, I conclude that there was no meaningful public participation,” Wanjala said.
According to Jusice Mohamed Ibrahim, the respondents did not provide proof that the BBI process was subjected to adequate public participation before it was escalated to the county assemblies and the bicameral Houses of Parliament.
On the question of whether the IEBC was properly constituted during signature verification, a majority of the judges concluded that the electoral board had enough commissioners to oversee the process. Justice Mohamed Ibrahim, on the other hand, had a different opinion.
This BBI decision, the final in the lawsuit series, is a setback for President Uhuru Kenyatta and Raila Odinga’s pet project to expand the Executive and introduce the posts of a prime minister and two deputy prime ministers.
If the Bill had been passed, Kenya would have had 70 new constituencies in the upcoming general election, as well as a higher number of female legislators in the bicameral Houses of Parliament.
Raila Odinga has stated on the record that “reggae (BBI) is on half-time” and that he will reintroduce the push to change the Constitution in the future.
To summarize:
-In Kenya, six of seven judges ruled that the basic structure doctrine does not apply. Justice Mohamed Ibrahim expressed his displeasure.
-Six of seven judges ruled that President Uhuru Kenyatta cannot amend the Constitution through popular initiative. Njoki Ndung’u, the Chief Justice, dissenting.
-Five judges determined that President Kenyatta initiated constitutional amendments directly. Dissension was expressed by Justices Isaac Lenaola and Njoki Ndung’u.
-Justices Isaac Lenaola and Njoki Ndung’u dissented on whether the constitutional amendment Bill was unconstitutional.
