CJ Martha Koome: A summary of her BBI verdict

Chief Justice Martha Koome on Thursday, March 31 ruled that public participation was inadequate during the roll-out of BBI changes in regard to boundaries delimitation.

She said, in her verdict, that the constitutional amendment process, in this regard, wasn’t satisfactory.

The Chief Justice also ruled that President Kenyatta overstepped his mandate when he initiated changes to the Constitution through the popular initiative route.

Below is a summary of the CJ’s verdict on the different contentious issues, which ended in the vicious Supreme Court battle:

Uhuru’s popular initiative

President Uhuru Kenyatta did not have the right to use popular initiative route to initiate changes to the Constitution; stated that the option, which is available only to mwananchi, excludes Legislature and Executive.

“State organs have no right to activate the popular initiative. This leads to the conclusion that the popular initiative is a preserve of the citizen popularly known in Kenya as 'Wanjiku'.

"This is clearly demonstrated in a number of ways; the president signed the communiqué in March 2018, the official title of the president on the communique was published in a newspaper bearing the coat of arms of the Republic of Kenya and the seal of the president, the president appointed the BBI taskforce and the BBI steering committee taskforce through a gazette notice.

“He also received the official reports through a State function as president. As a result, it cannot be disputed that the president was involved in the initiation of the Amendment Bill.”

Basic structure doctrine

High Court and Court of Appeal erred by “finding fourth Judiciary-created pathway for amending the Constitution”; said applicability of basic structure doctrine should be flexible.

“The Constitution demands heightened procedures beyond the tiered design of the amendment procedures provided in Chapter 16 that would make the Constitution more difficult to amend.

“I find it difficult to justify this Judiciary-created fourth pathway of amending the Constitution founded on the basic structure doctrine. There was no justification provided to demonstrate the lacuna in the Constitution.

“I see a potential conflict within the constitutional system with the Judiciary-created fourth pathway for amending the Constitution. The fourth pathway of amending the Constitution: Kenyans, the Legislature were not consulted.

“Tiered design of Constitutional amendment process is one of the design options used to curb the process of hyper-amendment. Applicability of basic structure doctrine depends on context.  The most important contextual consideration is the balance between flexibility and rigidity of the amendment process.”

IEBC role in delimitation

BBI proponents overstepped their mandate by allocating and apportioning 70 new constituencies;  held that only IEBC has the power to do so.

“Directly allocating and apportioning constituencies usurps the mandate of IEBC, an independent constitutional Commission, [and in essence], removing the possibility of Judicial review of the delimitation.

“Delimitation of constituencies must be accompanied by a process that is fair and just.”

Public participation

Public participation was inadequate during the roll-out of BBI changes, says the constitutional amendment process, in this regard, wasn’t satisfactory. This was in regard to boundaries delimitation.

"There must be public participation, collection of one million signatures, support of initiative through approval of the Bill by the majority of the county assemblies, consideration of the Bill by the bicameral Houses of Parliament, subjection of the Bill to a Referendum; at least half of the counties vote in the Referendum, and the amendments supported by a simple majority, processing of Bill in county assemblies and bicameral Houses of Parliament subject to further public participation, voter education on IEBC.

“Public participation must inform entire amendment process; amendment Bill must go through the bicameral Houses of Parliament.”

Civil proceedings against sitting president

Civil proceedings cannot be instituted against a sitting president, and that the lower courts engaged in “judicial overreach”.

“The implication of this (allowing the president to be subjected to civil suits) is far-reaching, and therefore calls for a very careful analysis and consideration by this court.

“The exercise of public power by the president can be challenged in a court of law by suing the Attorney-General through an action of Judicial Review or Constitutional petition.

“This is an interpretive path that is not open to the courts. An interpretation of the Constitution that resorts to an amendment by the judgement is tantamount to Judicial overreach.

“This leads me to the conclusion that the learned judges erred in their judgement by holding that civil proceedings can be instituted against the president or the person performing the functions of the president.”

IEBC quorum

The electoral board had a quorum when it undertook the verification of signatures in support of the amendment Bill. The IEBC had three commissioners at the time.

“The IEBC was legally constituted. It was composed of the minimum number of three commissioners [as] stipulated in Article 51 of the Constitution. As such, I find that IEBC was constitutionally and legally composed when it undertook the [signatures] verification process under Article 257 of the Constitution.”