Anxious wait for Uhuru, Raila and Ruto ahead of BBI ruling

Anxiety has gripped political bigwigs ahead of Thursday's high-stakes Supreme Court judgment on the Building Bridges Initiative.

It was declared unconstitutional, null and void by the Court of Appeal on August 25, 2021.

The BBI initiative was a constitutional review process championed by President Uhuru Kenyatta and ODM boss Raila Odinga to 'cure the country's winner-takes-all syndrome'.

However, the High Court and the Court of Appeal quashed the bid known as BBI Reggae. It thus quashed hopes for a referendum to increase government positions, create 70 new constituencies, pick ministers from MPs and increase funding to counties, among other provisions.

The Supreme Court will on Thursday deliver its judgment on seven issues framed during the appeals hearing.

The apex court's much-awaited decision has the potential of radically shifting the country's political landscape ahead of the August 9 general election. 

President Kenyatta and Raila, and DP William Ruto — who vigorously opposed the BBI changes — are waiting for the judgment with bated breath. Ruto said it was unnecessary and a waste of resources during the Covid-19 pandemic and economic hard times.

The seven-judge bench has three options but lawyers argue the court could most likely opt for  a win-win judgment  to 'stabilise' the country ahead of the polls.

The judges could allow the appeals and overturn the Court of Appeal findings. They could dismiss the appeals and uphold the decisions of the lower courts the effectively killed BBI, for the time being.

They could also decide on a 'Solomonic judgment' with a 50-50 win situation to unite the country in the face of two bitter political factions.

On Tuesday, lawyer Danstan Omari said given that the Supreme Court is a quasi political-legal jurisdiction, it will balance the interests of both parties.

"I think each party will get something from the judgment, which will be like a win-win situation," he said.

The court will determine issues related to the Basic Structure Doctrine, the role of the President and state officers in the amendment of the Constitution through popular initiative and immunity of the president.

The questions the judges will determine are the Basic Structure Doctrine, whether it is applicable in Kenya and whether the Constitution can only be changed by following the four sequential orders.

The steps are civic education, public participation, constituent assembly debate and referendum. 

Both the High Court and the Court of Appeal ruled the BBI was unconstitutional for failing to follow the sequential steps.

The two lower superior courts said the Basic Structure Principle is applicable to Kenya.

The second issue is whether the President can initiate changes to amend the Constitution through popular initiative.

The lower courts ruled the President has no power to initiate an amendment of the Constitution through a popular initiative.

The courts said the popular initiative is a preserve of ordinary citizens.

The court will also rule on the constitutional rights of the President as a citizen, including his right to equal treatment under the law, freedom of expression and freedom to make political choices.

The other thorny issue for determination will be the legality of the 70 new constituencies proposed in the BBI Bill.

The additional electoral units were a key plank of the BBI push and were aimed at shoring up support for the initiative, especially in Uhuru's Mt Kenya turf.

The High Court and Court of Appeal found that the proposal was illegal, as delimitation of boundaries is the mandate of the Independent Electoral and Boundaries Commission.

The issue of public participation in the BBI constitutional amendment process and the role of the electoral commission are also to be determined.

The judges will rule whether the IEBC was properly constituted with three commissioners when it processed the BBI Bill and forwarded it to county assemblies.

The High Court and the Court of Appeal had found the IEBC had no quorum to conduct major business and approve the BBI.

Judges will also determine whether the IEBC Act that sets the quorum of commissioners at five supersedes the Constitution that puts the number at three.

Another question is whether the President can be sued in his personal capacity for anything done or not done while in office when he enjoys presidential immunity.

The lower  courts said civil proceedings can be initiated against the President in his personal capacity, meaning he does not have absolute immunity. 

Another issue is whether a referendum ballot paper involving multiple amendments should contain multiple questions, or be a single question, such as "Do you support the Building Bridges Initiative?" covering everything.

The BBI outcome has huge political significance.

If the judges throw out the appeal, that would mark the end of  BBI, a major political project by the President and Raila. If more positions were created, more constituencies, they could share more positions and woo more support. 

However, if the judges concur with the appellants — the Attorney General and the IEBC — then the President and Raila would be free to proceed with the constitutional amendment push.

Lawyer Shadrack Wambui said the judges are faced with a defining moment when they are expected to balance several interests.

“The Supreme Court as an apex court is on trial because to allow that Bill in the manner in which it was drafted and proposed would be an invitation to an external force to interfere, tinker with and disturb the independence of the Judiciary,” Wambui said.

On whether a referendum can be conducted before August, Wambui said that practically speaking, it will not be easy to do so.

“Law must serve the society it's not for the society to serve the law and we must live within realm of reasonability and practicability,” he said.

BBI had proposed among other things increase of county allocation of national resources from at least 15 per cent to a mandated 35 per cent.

The Bill also proposed the introduction of a prime minister with two deputies, a leader of the official opposition and a hybrid system to have ministers picked from Parliament. 

It also proposed the establishment of the office of the judiciary Ombudsman to prefect the Judiciary, which critics call interference and giving undue power to the president.

Supreme Court judges led by Chief Justice Martha Koome concluded hearings on January 23 this year and retreated to write their judgment.

Other judges include Deputy CJ Philomena Mwilu, judges Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko. 

The case challenging BBI was first filed at the High Court by activists who opposed the initiative.

The activists were economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.

Later, the Ndii-led team’s case was consolidated with seven other cases challenging BBI process to amend the Constitution.

They sued Attorney General Kihara Kariuki, National Assembly Speaker Justin Muturi, his Senate counterpart Ken Lusaka and the Independent Electoral and Boundaries Commission.

The cases challenged the content of and the process by which the BBI Bill was formulated. They challenged the steps that had been and were intended to be taken to amend the Constitution.

In May last year, a five-judge bench of the High Court declared the process unconstitutional and blocked the electoral agency from holding a referendum on the Constitution of Kenya (Amendment) Bill.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said amendments cannot be made to the basic foundation structure of the Constitution.

The judges said Uhuru does not have powers to initiate constitutional amendment under the law, only Parliament and the people have that power.

The BBI proponents then moved to the Court of Appeal to overturn the decision of the High Court.

The BBI Secretariat and Raila Odinga urged the appellate court to overturn the decision of the High Court, saying the court erred in nullifying BBI.

The President through lawyer Waweru Gatonye said the five-judge bench erred in law and fact by failing to adopt a holistic and contextual interpretation of constitutional provisions.

Gatonye said the provisions concerned the powers and exercise of presidential authority to meet constitutional aspirations and values.

The anti-BBI team said President Kenyatta cannot initiate a popular initiative to change the Constitution while still in power.

In the judgment delivered in August last year, the Court of Appeal dealt a blow to the BBI proponents by upholding the High Court judgment.

They then filed an appeal before the Supreme Court and the AG faulted the Court of Appeal for declaring the BBI process unconstitutional.

“We have no doubt  our Constitution has a basic structure, but our Constitution tells us that it is amendable and it goes further to tell us how it should be amended. It does not impose any limit to its amendability,” the President's lawyer Gatonye said. 

He faulted the judges for agreeing with the High Court ruling that basic structure is amendable only through the primary constituent power which must include four sequential processes.

(Edited by V. Graham)