Significance of Supreme Court’s verdict on BBI

Chief Justice Martha Koome (centre) with Supreme Court judges during the hearing of the BBI appeal case. [Collins Kweyu, Standard]

At least three factors define the significance of the Building Bridges Initiative (BBI) decision expected from the Supreme Court of the Republic of Kenya (SCORK).  

First, the contested BBI issues were the subject of the petition to the Supreme Court. Second, the interpretation, implementation and enforcement methodology on the BBI debate. Third, the role of the courts, and especially the SCORK in crucial but contested questions, and debates concurring amendment of the Constitution, law, policy and administration.  

The factual, posture and litigation trajectory of BBI began in the wake of the 2017 poll that culminated with a deeply divided Kenya. The rapprochement between President Uhuru Kenyatta and ODM leader Raila Odinga ushered in the BBI Task Force and BBI Steering Committee that led public consultation and participation that culminated in the Task Force and validation report, including about 4 million signatures, for shared prosperity and avoiding winner takes all. 

Subsequently, Dr David Ndii and the Linda Katiba team petitioned the High Court which declared the content and process of BBI Constitution of Kenya (Amendment) Bill, 2020 unconstitutional. The Court of Appeal largely affirmed the High Court albeit with some dissents and reversals occasioned by submissions by the appellants. The three (3) key petitioners in the Supreme Court raised the following seven (7) issues. 

First, what is the relevant interpretation of Articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC? Second, whether to have multiple or single questions in a referendum Bill. Third, public participation under Article 10 vis-à-vis the role of IEBC under Article 257(4); and whether there was public participation. Fourth, whether the President can initiate a constitutional amendment? Fifth, can the President be sued in his personal capacity? Sixth, whether a Constitution can only be changed following the “four sequential (and mandatory) steps including civic education, public participation, constituent assembly and referendum”?

Seventh, what is the basic structure doctrine (BSD); whether the basic structure (BS) of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power, and whether the basic structure doctrine (BSD) is applicable in Kenya. 

The SCORK is also expected to build on its record to adopt the appropriate constitutional interpretation, implementation and enforcement methodology which the High Court and the Court of Appeal largely did not apply.

This means systematically setting out and focusing on the text and literal or ordinary meaning on core constitutional provisions on the issues as stipulated under Arts. 1, 2, 10, 38, 238, 255, 256, 257, 258, 259). In doing so, it will be expected to determine what a popular initiative is, who can be a promoter, who was the BBI promoter, the extent of presidential immunity in Kenya, and the concept of BSD, eternity clauses, and application.  

Only when there is no text of language in the Constitution on content or process does the court then emphasize the relevant structure, the practice, history, intention (or spirit), and precedent from elsewhere. The Constitution and the SCORK has ruled before on textual, holistic interpretation…. Yet the two courts laid more emphasis on interpreting the (context of) Indian Constitution; on foreign case law; and scholarship that has no relevance to 2010 Constitution.

The Supreme Court is called upon under the interpretation methodology in the Constitution and the Supreme Court Act to determine fundamental constitutional, political and policy questions beyond the legalism, semantics and rhetoric that have clouded the debate.

-Prof Sihanya is a constitutional professor at the UoN