Final Blow as Supreme Court Declares BBI Bill Unconstitutional

The Supreme Court has upheld the decision of the Appeals Court that nullified the Constitutional Amendment Bill, 2020.

The apex court, in a majority judgment on Thursday, affirmed that the process to amend the constitution through the Building Bridges Initiative (BBI) was unprocedural.

Six out of the seven judges ruled that the President cannot initiate constitutional changes through the popular initiative route.

Three judges agreed that President Kenyatta was a promoter of the BBI proposed amendments, two ruled that he was not involved in the process while two judges abstained from that vote.

The seven-judge bench comprised Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola, and William Ouko.

Koome, Ouko, Lenaola, Wanjala, and Mohamed declared that the popular initiative route is reserved for Wanjiku and not holders of the offices in the Executive or the Legislature.

“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 Koome.

A majority of the judges also found that the basic structure doctrine of the Constitution does not apply in Kenya.

The entire bench held that a sitting president is immune to civil litigation, with Justice Koome stating that the lower courts erred in finding that the president could be sued in civil disputes.

A majority of judges also found that the IEBC’s role was usurped and that the proponents of the BBI overstepped their mandate by creating 70 new constituencies.
 
On whether the IEBC was properly constituted during the verification of BBI signatures, six judges found that the electoral commission had a quorum to oversee the exercise. Justice Ibrahim differed.

The judges also ruled that IEBC had no mandate to ensure promoters of BBI complied with requirements for public participation. They found that there was public participation on BBI.

The judges held that the issue of multiple questions was not ripe for determination and ordered each party to bear own costs of suit.

Attorney-General Kihara Kariuki, the IEBC, President Kenyatta, and Raila Odinga had filed an appeal at the apex court after the Court of Appeal threw out the BBI push.