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Final Blow as Supreme Court Declares BBI Bill Unconstitutional

The Supreme Court has ruled that the Building Bridges Initiative (BBI) Bill was unconstitutional.   

In the ruling that was made on Thursday, March 31, six of seven judges ruled that the President cannot lead a popular initiative to amend the Constitution. 

Chief Justice Martha Koome ruled that Uhuru Kenyatta was involved in the initiation and promotion of BBI in his capacity as the president and not as a private citizen.

“I therefore endorse the finding by the two superior courts that the president ought not be player and an umpire in the amendment process of the Constitution,” CJ Koome said. 

The CJ noted that Uhuru appointed the BBI task force and secretariat through a government notice, received the report at a state event, and issued communication regarding the initiative with state symbols and insignia.  

“The president appointed the BBI taskforce, it cannot be disputed that the president was involved in the amendment of the BBI amendment bill,” CJ Koome stated. 

Below are summaries by other judges on the BBI Bill. 

Justice William Ouko 

  1. Basic structure is not applicable to Kenyan Constitution.
  2. President is ineligible to directly or indirectly initiative a constitutional amendment process through a popular initiative. 
  3. The second schedule in the BBI Bill on creation of new constituencies is inconsistent with the Constitution. 
  4. The High Court and the Court of Appeal erred by arriving at the conclusion that civil proceedings can be instituted against the President during his tenure in office. 
  5. There was sufficient evidence that there was public participation except on the second schedule of the Bill. 
  6. IEBC was legally constituted with 3 commissioners. 

Justice Isaac Lenaola 

  1. Basic structure doctrine not applicable in Kenya. 
  2. The President cannot initiate a popular initiative, and in this case he did not initiate it. 
  3. Proposal on creation of 70 new constituencies was unconstitutional. 
  4. The President is immune from civil proceedings during his tenure. 
  5. There was reasonable public participation. 
  6. IEBC was quorate and constituted to undertake its functions. 
  7. On the matter of referendum question of questions, it is premature. 

Justice Njoki Ndung’u 

  1. Basic structure is not applicable in Kenya. There is no such thing as eternal clauses in the Constitution. 
  2. The President was not the promoter of BBI Bill and the popular initiative.
  3. The bill on the second schedule had not been enacted into law, hence the law can’t express itself in the creation of new constituencies.
  4. In appointing the BBI secretariat, the president was discharging his constitutional mandate and therefore nothing to charge him about. I disagree that the president can be held liable.
  5. Promoters are not under any obligation to conduct public participation. No public participation is needed for the collection of signatures. I disagree with the court of appeal. I disagree that there was no public participation in the BBI process.
  6. IEBC was legally constituted with 3 Commissioners.
  7. On referendum questions, one question was sufficient.

Justice Ibrahim Mohammed 

  1. The doctrine of Basic Structure is applicable in Kenya. Only the people can make and unmake the Constitution of Kenya.
  2. The President cannot initiate a public initiative.
  3. The second schedule on the creation of new constituencies was unconstitutional.
  4. No civil proceedings can be instituted against the President during his tenure.
  5. By the time the court stopped the BBI process, no meaningful and sufficient public participation was conducted.
  6. The commission was not constitutionally constituted. But it was right in complying with a decision of the court in the Isaiah Biwott case.
  7. On the number of referendum questions, the matter was not ripe for determination

Justice Smokin Wanjala 

  1. Basic structure doctrine is not applicable in Kenya.
  2. The President cannot initiate or activate any constitutional change through popular initiative.
  3. The second schedule in the BBI Bill on creation of new constituencies is unconstitutional.
  4. Civil proceedings cannot be instituted against the President while in office.
  5. Promoters of BBI did not conduct meaningful public participation.
  6. IEBC was constitutionally constituted.
  7. On number of referendum questions, this matter was not ripe for determination.

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