The Supreme Court of Kenya has dealt a blow to attempts by the proponent of constitutional amendments through the Building Bridges Initiative, BBI, after finding the process unconstitutional.
Five of the eight Supreme Court judges, that is, Chief Justice Martha Koome, Justices William Ouko, Isaac Lenaola, Smokin Wanjala, Mohamed Ibrahim said the popular initiative route of amending the Kenyan Constitution is reserved for Wanjiku and not holders of the offices in the Executive or the Legislature.
The judges observed that the whole process of amending the constitution was initiated by the President and former Prime Minister Raila Odinga and was being promoted by Suna East Member of Parliament Junet Mohamed and former Dagoreti North Member of Parliament Dennis Waweru, contrary to the provisions of the constitution that the process be initiated by the common mwananchi.
“The popular initiative is supposed to be triggered from below; at the initiative of the citizenry, as opposed to representative institutions. A popular initiative is a means of direct democracy, and indeed, direct democracy can only be exercised by the people and not their representative,” said the Chief Justice.
The judges unanimously found that the contentious issue of the application of the basic structure doctrine was not applicable in Kenya. According to Justice Njoki Ndung’u, the basic structure doctrine could only be deduced from our constitutional past and it was unnecessary to import it to Kenya.
The judges further held that the sitting Head of State enjoys immunity against civil litigation, with the Chief Justice saying that the lower superior courts’ judges, who found that President Kenyatta could be sued in civil disputes, erred. The CJ says the implication of allowing civil suits against a sitting President is far-reaching.
“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,” she said.
The court further observed that the proponents of BBI overreached in their mandate by proposing 70 new constituencies as this is a constitutional role of the IEBC.
However, on the matter of public participation, the eight-judge bench was divided in opinion as a section of judges held that there was sufficient public participation while another faction said that proof of public participation during the process was not adequately provided.
“A process cannot commence with the collection of signatures. Surely, the people must be appending their signatures to something – either a draft Bill or a general proposition. I conclude, therefore, that there was no meaningful public participation,” said Justice Smokin Wanjala.
Majority of the judges further found that the IEBC was properly constituted during the collection and verification of signatures saying that the electoral body had enough members to oversee the exercise. Justice Mohamed Ibrahim differed.
-Six out of seven judges ruled that the basic structure doctrine does not apply in Kenya. Justice Mohamed Ibrahim dissented.
-Five judges found that President Kenyatta directly initiated amendments to the Constitution. Justices Isaac Lenaola and Njoki Ndung’u dissented.
-On whether the constitutional amendment Bill was unconstitutional, Justices Isaac Lenaola and Njoki Ndung’u dissented.
-Six out of seven judges ruled that President Uhuru Kenyatta cannot use popular initiative route to change the Constitution. Justice Njoki Ndung’u dissented.
-All the seven judges (unanimously) held that a sitting president cannot be subjected to civil litigation.
-All except Justice Mohamed Ibrahim ruled that the IEBC, with three commissioners, had the requisite quorum to verify one million BBI signatures.
-All the seven judges also held that there was no obligation on the IEBC to ensure that promoters of the constitutional amendments conducted adequate public participation before escalating the Bill to the county and national assemblies.
-Each party should bear own suit costs.
The verdict now serves as the final blow to President Uhuru Kenyatta and former Premier Raila Odinga who were the chief proponents of the process. Despite many times the two going on record claiming that the process was on a temporary halt, with the President being quoted saying BBI was a dream differed and Odinga severally saying ‘reggae’ was on half-time, the process has to start from the beginning if it is to continue, though following the required constitutional procedure.