Justice Njoki Ndung’u BBI judgement: In her own words

Supreme Court Judge Njoki Ndung’u reading her judgement on BBI on March 31, 2022. [Standard]

Supreme Court judge Njoki Ndung’u on Thursday, March 31, held that President Uhuru Kenyatta, just like Kenyan civilians, is within his right to initiate changes to the Constitution of Kenya through the popular initiative route.

Ndung’u, however, said the proponents of the BBI proved that there were other people who directly initiated constitutional change through the BBI, and not the president. The initiators, she suggested, were Junet Mohamed and Dennis Waweru.

Below is a summary of her verdict:

Basic structure doctrine

She said: “It can only be deduced by our constitutional past. It is unnecessary to import basic structure doctrine to Kenya.”

Popular initiative

“If any Kenyan has the right to initiate a popular amendment to the Constitution, while respecting, upholding and defending the Constitution, so too does the president in his official or personal capacity. It would be restrictive, unjust, unprogressive and unconstitutional to limit that right.

“A popular initiative amendment is not a reserve of specific persons. Any Kenyan can originate, and promote the popular initiative amendment and the people, as defined in the Constitution, also mean their representatives exercising donated sovereignty.

“President did not initiate the amendment process. In due spirit, he was not the promoter of the popular initiative.”

Civil suit against president

“The president’s actions or omissions entitle him to immunity as provided for in Article 143 of the Constitution.”

Public participation

There was public participation at the county level and the bicameral Houses of Parliament.

IEBC quorum

The judge ruled that during the collection of signatures, IEBC, with three commissioners in office, was properly constituted.