BBI: What the Supreme Court Ruled on 7 Key Questions

The Supreme Court on Thursday, March 31 delivered the final blow in the Building Bridges Initiative (BBI) saga as the proposed Constitutional amendment bill was declared unconstitutional.

In a ruling delivered over five hours and beamed on live TV, all 7 members of the Supreme Court bench shared their summarized opinions on the key questions emerging in the case following the Court of Appeal decision that effectively ended the BBI’s march to a referendum.

Led by Chief Justice Martha Koome, the judges tackled key issues forming the appeal. The majority agreed that the President could not initiate a process to amend the Constitution,  with only Justices Njoki Ndung’u and Isaac Lenaola dissenting.

Analysts and commentators have, however, noted that the ruling opens the door for the introduction of Constitutional amendment processes in the future in line with the established jurisprudence. So what  exactly did the judges decide on the key questions before them? Business Today has you covered.

1. On Whether the Basic Structure Doctrine is Applicable in Kenya

The Supreme Court ruled that the Basic Structure Doctrine was not applicable in Kenya, with Justice Ibrahim dissenting.

The Majority held that no gaps had been identified with regard to Chapter Sixteen of the Constitution, which deals with amendments to justify the application of the basic  structure  doctrine.  Further,  the  Constitution  is  self-executing  in  dealing with any threat of any possibility of abusive amendments as witnessed in the pre- 2010 era. In addition, the Court held that the basic structure doctrine does not form part of the general rules of international law which are applicable in Kenya under Article 2(5) of the Constitution.

2. On Whether the President Can Initiate Constitutional Amendments/Changes Through a Popular Initiative Under Article 257 

The majority ruled that the President could not initiate amendments through a popular initiative under Article  257 of the Constitution, with Justice Njoki Ndung’u  dissenting.

The court also ruled that the President initiated the amendment process leading to the draft bill, with Justices Njoki  and Isaac Lenaola dissenting.

The  Majority  held  that  Article  257  in  providing  for  the  popular  initiative amendment  route  was  conceived  and  designed  to  serve  as  a  citizen-driven process of amending the Constitution to the exclusion of the President. Secondly, the  process  of  amending  the  Constitution  through  the  Constitution  of  Kenya (Amendment)  Bill,  2020  was  initiated  by  the  President  rendering  the  subject amendment  process  unconstitutional  as  it  was  contrary  to  the  provisions  of Article 257 of the Constitution.

Lenaola whilst  agreeing  with  the  Majority  that  a  popular  initiative  is  a preserve of citizens to the exclusion of the President, held that the President did not initiate or promote the Constitution of Kenya (Amendment) Bill, 2020.   In his  view,  the  initiation  of  the  subject  Amendment  Bill  was  done  by  the  BBI National Secretariat.

3. On Whether The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional because of lack of public participation

The   Court   found   that   the   Second   Schedule   of   the   Constitution   of   Kenya (Amendment)   Bill,   2020,   which   apportioned   and   allocated   the   proposed additional seventy (70) constituencies, was a late addition to the subject amendment process and was not subjected to public participation as required by the Constitution. In concurring, Njoki Ndungu, SCJ held that the Second Schedule of the Constitution (Amendment) Bill had not been enacted into law and as such, a constitutional challenge on it is not ripe.

4. On Whether Civil Proceedings Can be Instituted in Court against a President

The Court unanimously found that the intention of Article 143(2), which provides immunity to the President, is to immunize/protect the President from civil proceedings during his tenure in office for acts or omissions connected with the office and functions of the office of the President. They stated that two courts below erred by attempting to amend the provisions of the Constitution through a Judgement.

They noted that legal action could however be taken against the President or someone performing the functions of the Office of the President through the Attorney General.

5. On Whether There was an obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation.

The court unanimously ruled that there was no obligation on IEBC to ensure promoters of the amendment bill complied with public participation requirements.

The majority also ruled that there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020 with Justices Mwilu, Wanjala and Ibrahim dissenting.

6. On Whether The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4).

The majority found that IEBC had the requisite composition and quorum to undertake the signature verification process for the amendment bill.

Justice Ibrahim dissented.

7.  On the question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails/ requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions 

The Majority were of the view that IEBC had not had an opportunity to address its mind and make a determination on whether Article 257(10) of the Constitution requires  that  all  specific  proposed  amendments  to  the  Constitution  should  be submitted  as  separate  and  distinct  referendum  questions.