Supreme Court judges declare the BBI process unconstitutional

President Uhuru Kenyatta’s involvement in the Building Bridges Initiative (BBI) dealt a major blow to the plan to amend the Constitution.

The Supreme Court’s final verdict puts to an end the BBI reggae — born out of the March 2018 handshake between President Kenya and former Prime Minister Raila Odinga.

The judges declared the process unconstitutional.

With that pronouncement, Chief Justice Martha Koome, her deputy Philomena Mwilu, judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko ended a process that would have shaped the 2022 elections.

It was, however, a win-win decision where the judges stopped the BBI from proceeding to a referendum, but gave its proponents a lifeline to start the process afresh. They declared that the Constitution has no basic structure and any provision can be amended.

Majority of the judges agreed that the president’s involvement was the single issue that made the BBI unconstitutional.

They ruled that Mr Kenyatta is not an ordinary citizen with powers to initiate constitutional amendments through a popular initiative.

“The president’s hand and footprints were evident from the initiation when he established the BBI task force to the moment the Bill was submitted to Parliament. To the extent that he took certain steps to amend the Constitution makes the whole exercise irredeemably flawed,” ruled the judges.

Although the judges agreed that the president’s involvement was the issue that made the BBI unconstitutional, they had their other reasons with each one reading their opinions with Justices Njoki and Lenaola having dissenting opinions.

Justice Koome ruled that although the president showed an act of statesmanship by having the handshake with Raila, he had no powers to initiate the BBI while acting in his capacity as the head of state.

The CJ stated that a popular initiative to amend the Constitution is a preserve of ordinary citizens, while Justice Ouko stated that the president attempted to pass the button to the BBI secretariat when it was too late to cure his illegal involvement.

“The BBI great grandfather is the handshake between Uhuru and Raila while the grandfather is the BBI task force and the father is the BBI steering committee. The president’s hand is clearly visible, he cannot act as ordinary citizen and still exercise powers of the president,” ruled Justice Ouko.

Justices Mwilu, Wanjala and Ibrahim agreed that it was difficult to separate the president from the BBI process and that his functions are clearly spelt by the Constitution.

It was, however, not all gloom for the pro-BBI as the apex court cleared the way for amending the Constitution by overturning tough procedures on sequential steps that had been imposed by the High Court and the Court of Appeal on applicability of the basic structure.

Their finding that the basic structure principle is not applicable to Kenya was a win for the BBI proponents, meaning that they have another chance to re-ignite the push to amend the constitution without the president’s involvement.

According to the Supreme Court, the High Court and Court of Appeal were wrong in importing foreign precedents to make it impossible to amend the constitution.

“Any article in the Constitution can be amended through following procedures as provided by the constitution. There was no justification for them to go outside the country and impose consequential steps which made it impossible to amend the constitution,” ruled the judges.

The High Court and the Court of Appeal had ruled that the Constitution has a basic structure which can only be amended through four sequential steps of civic education, public participation, constituent assembly debate and referendum.

But the apex court ruled that the superior court judges were out of touch with reality that every new generation need to be given opportunity to decide the way they want to be governed, without putting restrictions that make it impossible to change the Constitution.

According to the judges, the four sequential steps can only apply when making a new Constitution and not making changes to an existing one.

They ruled that the president cannot be sued in his personal capacity while in office.

“Their finding that the president can be sued in his personal capacity while in office was far reaching and unnecessary,” ruled the judges.

According to the Supreme Court, the public can still move to court to challenge any decision by the president, but the right person to sue is the Attorney General.

They added that allowing civil proceedings against the president or any person acting in that office will stop them from performing their duties because of fear of being sued.

The Independent Electoral and Boundaries Commission (IEBC) also won the battle over their quorum as the Supreme Court ruled that they were properly constituted at the time they approved the BBI signatures and sent the Constitutional Amendment Bill 2020 to the county assemblies.

The apex court ruled that the constitution places the minimum quorum for independent commissions at three commissioners and that it was wrong for the Court of Appeal to rely on the IEBC Act to place the quorum at five.

“We do not understand where the superior court judges found the conflict when it is clear that an act of parliament cannot supersede the constitution. We find that the minimum quorum for IEBC is three commissioners and that they were legally constituted to pass the BBI signatures,” ruled the judges.

On the question of public participation, the judges ruled that there was adequate evidence that the public were involved.

The judges, however, faulted the BBI proponents for proposing creation of additional 70 constituencies without adequate public participation.

“The issue of boundaries delimitation is such an emotive issue that it cannot be done without involving the people. In any case, creation of new constituencies is a preserve of IEBC,” ruled the judges.