• Legal experts say only two outcomes are expected, which are to either uphold the High Court judgment that nullified BBI or overturn it.
• ODM leader Raila Odinga said they are not planning to move to the Supreme Court if the appeal is defeated.
7. Justice Musinga agrees with a majority of his colleagues that there exists a basic structure doctrine in the Kenyan Constitution.
Musinga: Any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment. It amounts to the dismemberment of the constitution.
Justice Musinga also says that President appointing Judiciary Ombudsman entrenches the Executive in the Judicial Service Commission and by extension the Judiciary.
Musinga: The task of review of names and delimitation of constituencies exclusively belongs to the IEBC. The task of deciding which counties should have extra constituencies should have been handled by IEBC.
Musinga: Transparency, in this case, required that civic education properly be done. Public participation is part of our Constitution. Amendment of the Constitution must include public participation.
Musinga also says that there can be no dispute that the President was the Initiator of BBI having established and gazetted the BBI task force and steering committee.
Musinga: I am in agreement with High Court findings that the BBI amendment bill was an initiative of the President.
Musinga: The BBI Steering Committee had no constitutional mandate under Article 257 of the constitution. This was a move initiated by the political elite, not by the people of Kenya.
On the creation of constituencies, Musinga says that the creation of 70 new constituencies in the BBI Bill was "a classic case of gerrymandering."
Musinga agrees with his colleagues that the president is not immune to civil proceedings.
6. Justice Roselyne Nambuye agrees with the Appellants that there is no basic structure doctrine in Kenya.
The judge adds that the provision on 70 constituencies in the BBI Bill was unconstitutional.
She also says that BBI was an Executive-driven and not a people-driven initiative.
Nambuye: I agree with the majority that the BBI Bill cannot be subjected to a referendum because it violated the constitution. But no matter the outcome on this matter, everyone is a winner because the constitution has won.
5. Justice Hannah Okwengu starts off her judgment by addressing the issue of the Basic Structure Doctrine.
Okwengu says that the Kenyan Constitution has a basic structure on specific areas as outlined in article 255.
Okwengu: Constitutions are like human beings; they are never perfect. Each Constitution responds to different circumstances. An amendment is an alteration of the Constitution that is carried out within the confines of the existing Constitution
Okwengu: Amendments to the constitution must pass the substantive test, the spirit and purpose of the Constitution. The purported amendments may meet the requirement of Chapter 16 but not measure up to the preamble's objectives.
Okwengu says that 'Popular Initiative' under Art 257 is a process that is initiated by the voter, not their representatives or the President.
Okwengu: A promoter may not be the originator of the initiative but one who takes the lead. Neither the president nor the representatives can be.
Okwengu: No evidence was presented to show there was meaningful public participation. This rendered the process Constitutionally unsustainable. BBI Steering Committee failed to involve members of the public effectively.
Okwengu says that the BBI task force and steering committee were appointed to advise the president on matters within his governance mandate.
She notes that he was free to receive proposals for amending the const through the Parliamentary process but not under Article 257 on Popular Initiative.
Okwengu: The BBI was not Citizen-driven. The President doesn't have the authority to promote a popular initiative. The steering committee had no legal capacity to promote the initiative.
Justice Okwengu also concluded that the President has no immunity against civil proceedings.
4. Justice Patrick Kiage takes over after the lunch break starting off with the Basic Structure Doctrine.
Kiage: The 2010 Constitution was a product of immense sweat and intense public participation.
Kiage: Interpreter must have the purposes, values and principles of the Constitution as opposed to narrow interpretation. Purposeful, value-laden interpretation of the Constitution is what is required. The Constitution calls me to be a warrior in defence of the rule of law and human rights.
Kiage: Those who swear by the Constitution must be ready to live with its requirements or else give such offices a wide berth.
Kiage: The same way new wine cannot be stored in old wineskins, it will be totally illogical to try and squeeze a transformative constitution within the suffocating straight jacket strictures of formalistic or positivistic interpretation.
Kiage: The independence constitution was several times amended diluted, dissolved, abused for narrow partisan ends.
Kiage: The people were not mere observers or peripheral players in the making of the 2010 Constitution. They were not mere instrumentalities for the formal adoption of a document conceived by the political power elites of the day.
Kiage: It is the desire of Kenyans, that the constitution is amended the only way they made it.
Kiage: Any amendments that alter the core aspects of a Constitution, changing its character in a radical manner essentially changing its basic structure and in all but words, dismembers the Constitution.
Justice Kiage says a popular initiative must be conceptualised by citizens and driven by the citizens.
He notes that the manner in which BBI was initiated and pushed through the President in his official capacity through the various actions that involved gazettement.
Kiage: A popular initiative is a citizen-driven initiative and when initiated by the president, no matter how well-intentioned, it ceases to be a popular initiative and should be called a state or presidential initiative.
Kiage: The mere invitation of the people to vote on the radical transformative proposal at a referendum was not an effect summons on the correct authority.
Kiage: The Constitution deliberately states that counties shall consider the bill for 90 days. What was witnessed in many counties was a farcical disregard of the people. A mad rush to demonstrate personal gratitude and party loyalty for the car grant received. The people did not matter.
In regards to the President's immunity, Kiage says: The days of an unaccountable President are long gone. The appeal on Presidential immunity must fail.
Kiage says that each amendment should be treated independently to allow voters to vote for specific changes in a referendum.
Kiage: All the decisions made by IEBC in relation to the proposed constitutional amendment via the BBI were invalid, null and void for lack of quorum.
Kiage: In the end, I trust that we have all kept the Constitution safe and secure on this occasion and may it always remain so.
3. Justice Kairu Gatembu takes over starting off with the Basic Structure Doctrine of the Constitution.
He says that the power to make fundamental amendments to the constitution belongs to the constituent or sovereign assembly.
He adds that the courts have the power to preserve that sovereign power and prohibit dismemberment of the Constitution.
Gatembu: The High Court was right in the methodology it employed in interpreting the constitutional provisions from a historical and contextual perspective and the complaint that the court misapprehended the methodology applicable is not well-founded.
Gatembu: The Basic Structure doctrine is part of our jurisprudence and is not alien a concept as some have submitted.
Gatembu says that the president doesn't fall under the definition of a "General Public" in regard to undertaking popular initiatives.
Gatembu: The president did not initiate the said process as a private citizen and was acting in his official capacity.
On public participation, Gatembu says that it was also necessary for the public to be supplied with adequate copies of the Bill for their consumption before the collection of their signatures.
Gatembu: I am in agreement with the High Court that there is a legal requirement under article 10 of the constitution for voters to be supplied with adequate information to make informed decisions. There is no evidence that was done in this case.
Gatembu also says that the absence of a legislative framework cannot bar IEBC from conducting a referendum in relation to Article 257.
The judge also said that he agrees with High Court that IEBC did not have the required quorum to conduct processes relating to the Referendum.
Gatembu also agreed with the High Court that the voter should not be presented with an omnibus bill and each amendment should be handled on its own merit.
Gatembu upholds the High Court ruling that the President can be sued in his personal capacity for anything done or not done in that capacity.
2. Justice Sichale takes over with her judgment after a health break given by Musinga.
Sichale kicks off her judgment by addressing the issue of the Basic Structure Doctrine of the Constitution.
Sichale: Basic structure doctrine does not hold since a constitution is a living document. Courts in other jurisdictions have rejected the basic structure doctrine.
Justice Sichale says that the constitution itself anticipated that it can be amended and it provided for its own amendment procedures.
Sichale: There are explicit provisions in the 2010 constitution providing for amendment and therefore there is no reason to look outside the constitution.
Sichale: The framers of the Constitution balanced between the flexibility and rigidity of the Constitution. If the amendment of the Constitution is rigid, it may lead to revolutions.
Sichale: Courts should not take over the role of constitutional amendments. Every judge will have their list of values regarding what is eternal.
Sichale: It is not good to elevate Judges to demi-gods. Judges, just like parliament, cannot assume supremacy over the people who are sovereign.
In conclusion, Justice Sichale disagrees with the High Court finding of 'unconstitutional constitutional amendments" arguing that there is no clause that prohibits any amendments.
Role of the President
Justice Sichale moves on to the role of the President in the amendment of the Constitution.
She concludes that the President cannot initiate an amendment to the Constitution through a popular initiative.
Sichale: The President cannot be a Wanjiku and therefore cannot initiate the process of amending the Constitution through a popular initiative.
Sichale differs from the High Court and says that the BBI task force and the steering committee were not illegal entities.
She however agrees with the High Court judges that the President can be sued individually on civil matters.
Sichale says that the verification of signatures was not null and void as it did not require a quorum at the IEBC.
Sichale: In my view, the issue of verification of signatures is not a policy but operational decision.
Sichale finds BBI proposal for 70 constituencies constitutional saying that IEBC role limited to delimitation.
1. Justice Francis Tuiyot starts with the issue of the Basic Structure Doctrine agreeing with the High Court and the Respondents that the Constitution of Kenya has a Basic Structure.
Tuiyot: Interpretation of the constitution is influenced by both text and context. Amendments entail a minor revision. It does not lead to replacement or repeal.
Tuiyot: An amendment to transfer judicial authority from the judiciary and independent tribunals to the executive is to unmake the constitution.
Tuiyot: Making and unmaking of the Constitution is a preserve for we the people exercising primary constituent power and should not be codified.
Tuiyot: What constitutes the basic structure of our constitution is easily identifiable.
Justice Tuiyot moves on to focus on the issue IEBC quorum.
He says that quorum was set through a constitutional amendment that set it at 3 - which was subject to a petition by Katiba Institute.
Tuiyot: Statute fixes the composition of IEBC to 7 and a quorum of 5 which has not been challenged.
Tuiyot concludes that he takes the same decision as to the High Court that the IEBC did not have the quorum when it embarked on the verification of signatures.
Tuiyot: IEBC was not quorate when it embarked on the business of verifying BBI signatures. The Commission needed to be in the right quorum. A drastically reduced membership could lead to the public losing confidence in the ability and neutrality of the Commission.
Court of Appeal President Justice Daniel Musinga gives a background of the Building Bridges Initiative from the March 2018 handshake between President Uhuru Kenyatta and ODM leader Raila Odinga.
Musinga: Each Judge has written their own judgement and shall read it personally. We shall each read what we consider most important of the Judgement. At 11 am we shall adjourn for a health break then continue.