BBI final verdict: What Philomena Mwilu said

Like the judges before her, Deputy Chief Justice Philomena Mwilu found that five out of seven issues that required determination in the Building Bridges Initiative (BBI) were grounds enough to declare the bill unconstitutional.

Mwilu  held that:

1. Basic structure doctrine

That Basic Structure Doctrine does not apply in Kenya.

“The Constitution of 2010 has a basic structure but for a basic structure doctrine, I find the same is not derivable from our constitution,” the DCJ noted.

2. Popular Initiative

That the president cannot directly initiate amendments to the constitution.

“An amendment of the Constitution can only be initiated through a parliamentary or popular initiative under Article 256 or 257 of the Kenya Constitution 2010.”

3. Second Schedule to the Constitutional Amendment Bill, 2010

The Bill is unconstitutional in that it directs the Independent Electoral Boundaries Commission (IEBC) on not only the delimitation of the number of constituencies but also the distribution of the proposed new constituencies.

“The commission cannot be directed,” Mwilu declared.

4. Presidential immunity

There was no proper service of the process and the president was therefore not accorded an opportunity to participate in the pleadings in his personal capacity, as he had been sued in his personal capacity

“The president cannot be sued during his tenure although his or her immunity is not absolute during their tenure in office,” she noted.

5. Public participation

Justice Mwilu found no reasonable or any degree of public participation.

6. IEBC quorum

IEBC had a quorum and nothing was shown to the contrary.

She ruled that the commission was properly constituted with the minimum required number of commissioners.

7. Referendum question

Agreed with other judges that the matter was not ripe.

“It still is not. Engaging in a discussion on that matter is a complete waste of judicial time…It is a non-issue,” the DCJ held.