The Supreme Court Decision: The Building Bridges Initiative (BBI)

The seven supreme court judges have given their individual judgments on the Building Bridges Initiative (BBI). Four issues are related to BBI and the rest deal with constitutional concerns and if the president can be sued while in power.

CJ Martha Koome was the first to deliver her ruling. In summary, she ruled that the basic structure is not applicable to the Kenya constitution 2010. She further ruled that the president cannot initiate and promote the popular initiative. On this she said, and I quote “I affirm the finding of the two superior courts, that the president was involved in the amendment bill. I support that the president or state institutions are not permitted to initiate or promote amendment through a popular initiative“.Cj Martha Koome also ruled that there was no reasonable public participation and the delimitation of constituencies was unconstitutional. Further, she ruled that civil proceedings cannot be initiated against the president while in office. She however said IEBC had the quorum to undertake signature verifications. On multiple referendum questions, she ruled that it was not ripe for determination. To her, each party should bear its own costs.

Judge William Ouko in summary ruled that the President spearheaded the process from the beginning until he handed it over to the committee. The President cannot act as an ordinary citizen and at the same time exercise executive authority. The president is ineligible to conduct amendments to the constitution. He said and I quote “The President cannot run with the hare and hunt with hounds“.  He further said and I quote “Although the BBI national secretariat does not disclose its ancestry, its family tree, its gene cannot be concealed..the great-grandfather is the handshake, the grandfather is the task force, its father is the steering committee”. He also ruled that the role of IEBC does not extend to public participation. He concluded that with three commissioners IEBC was properly constituted. The nature of the framing of the questions was not ripe for determination.

Judge Isaac Lenaola ruled the basic structure does not apply in Kenya, the president cannot and should not initiate the process of amending the constitution under the popular initiative. He agreed with the CJ that the delimitation of constituencies was unconstitutional and that the president cannot be sued while in office. There was no public participation in form of voter registration since the process was stopped before this could happen. He also agreed that on the issue of questions, this was premature since IEBC did not have the opportunity to draft the questions.

Lady Justice Njoki Ndung’u was of the opinion that the courts used words, not in the constitution like initiative, initiator, and promoter. To her popular initiative is in terms of numbers such as 2/3rd in parliament or county assembly. She said and I quote “It is the 1 million numbers that make the BBI popular. The popular initiative is about numbers and not the person initiating it”. The President according to her can act in the best interest of the nation. She differed on the involvement of the President as a promoter. The President is a Kenyan by birth and no law limits him the right to initiate any process like any other normal Kenyan citizen. According to her, the president did not initiate the constitutional amendment nor was he its promoter.  According to her, the promoters were Dennis Waweru and Junet Mohamed. She also disagreed that there was no public participation. She however agreed that the issue of multiple questions was not ripe.

Judge Smokin Wanjala was of the opinion that the basic structure doctrine is not applicable in Kenya and is a heuristic device. He was of the opinion the President cannot initiate a  constitutional amendment through a popular initiative, and that this is reserved for the common mwananchi.  He found it difficult to distance the president from the involvement and initiation of the amendment process.  He was in agreement that once a president, always a president until you leave office and cannot, therefore, be sued while in office. He concluded that the promoters did not undertake meaningful public participation. He found that the IEBC had the requisite quorum to verify the signatures. He agreed with all the rest on the issue of multiple questions.

Judge Ibrahim Mohamed was of the opinion that the popular initiative must be people initiated and the President cannot be neutral where he is a player. To him, the President ceases to be an ordinary citizen once he assumes office and cannot, therefore, be an initiator or promoter of the process. The president initiated the process through the gazette notice and was involved both directly and indirectly. He agreed with the rest that no civil proceedings can be initiated against the president while in office. According to him, public participation was not meaningful. To him, IEBC was not properly constituted but lawful.

Lady Justice Philomena Mwilu concluded that the basic structure doctrine does not apply in the Kenyan constitutional context. She agreed that the president cannot directly initiate a constitutional amendment making the constitutional amendment bill unconstitutional. She further said the IEBC cannot be directed on the delimitation of the 70 constituencies. She found no reasonable degree of public participation. To her, IEBC had a quorum to verify the signatures. She agreed with her colleagues that the issue of multiple questions was not ripe and is a non-issue.

The final deposition as read by Chief Justice Martha Koome was that the  Basic structure Doctrine is not applicable in Kenya with Judge Ibrahim dissenting. The President cannot initiate a popular initiative with Justice Ndungu dissenting. On the issue of whether the President initiated the amendments, Justice Ndungu and  Judge Lenaola dissented. On whether  IEBC  had Quorum, Justice Lenaola dissented. On public participation, only Justice Ndungu dissented. They all unanimously agreed the President cannot be sued while in office. In conclusion, the BBI BILL IS UNCONSTITUTIONAL.

What is your take on this judgment? Let the conversation continue in the comments section.

Dr. Mary Mugo

Strategy, Governance, and Management Consultant

Website:www.marymugo.com