•The Chief Justice in her judgment said the basic structure doctrine is not applicable in Kenya, and that the president was not allowed to initiate a popular initiative.
•She noted the creation of of new Constituencies was unconstitutional under the second schedule.
Image: EZEKIEL AMING'A
The Building bridges Initiatives has flopped after the Supreme Court judges ruled against it.
The ruling was made on Thursday by the Seven-judge bench.
Supreme Court ruled that the BBI Amendment Bill was unconstitutional.
Six of seven judges agreed that the President cannot lead a popular initiative to amend the Constitution.
"The Basic Structure Doctrine is not applicable in Kenya. In order to amend the Constitution of Kenya 2010, the four sequential steps are not necessary," Koome said.
Final judgment:
- Basic Structure is not applicable in Kenya.
- President cannot initiate amendment through Popular Initiative.
- Creation of 70 constituencies is unconstitutional.
- Civil proceedings cannot be initiated against the President.
- There was inadequate public participation (on the Second Schedule).
- IEBC was quorate and competent to handle the BBI Bill.
- Issue of multiple question was not ripe for determination.
- Each party to bear own costs of suit.
The justices are; Chief Justice Martha Koome, Justice William Ouko, Justice Isaac Lenaola, Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala and Smokin Wanjala.
Here are some of their remarks on BBI;
KOOME
The Chief Justice in her judgment said the basic structure doctrine is not applicable in Kenya, and that the president was not allowed to initiate a popular initiative.
She noted the creation of of new Constituencies was unconstitutional under the second schedule.
OUKO
He said civil proceedings could not be instituted against the president during his tenure. He added that the Independent Electoral and Boundaries Commission had quorum.
In his ruling, he said that the president commenced the process from its inception and then passed it to the Building Bridges Initiative (BBI) secretariat and he can’t act as an ordinary Citizen.
He ruled that the president cannot act as an ordinary citizen because he is not. "The entire process was irredeemably flawed."
"There is some evidence of state involvement in the BBI process," he ruled.
LENAOLA
Justice Isaac Lenaola agreed with the other judges that the basic structure is not applicable in Kenya.
"The basic structure doctrine does not apply in Kenya," he said.
But he has however dissented on the issue of who the promoter of BBI was. He disagreed with the other two judges saying the president was not the promoter.
NDUNG'U
Ndung’u ruled that the President enjoys all rights and he is a citizen like all others and he could also initiate a popular initiative.
“No law limits his rights including political rights like initiating constitutional change. Giving him office does not muzzle his rights. All Kenyans are equal,” she said on Thursday.
Judge Njoki also held that the basic structure doctrine has only been accepted in a few countries and has not ascended to a norm of international general application.
She further said that the constituent power cannot be governed by the Constitution. Four sequential steps are not mandatory unless outlined in a law.
BBI was declared unconstitutional, null and void by the Court of Appeal on August 25, 2021.
WANJALA
Wanjala agreed with the majority of Supreme Court judges that the Basic Structure Doctrine is not applicable in Kenya
"Basic doctrine is not applicable in Kenya. Contrary to what was decided by the Superior courts, there is no provision in our constitution that is unamendable," he said.
He said what they are faced with as a basic structure doctrine is a school of thought or juristic device and not a doctrine in itself.
On the Multiple Referendum Questions, he ruled that the interpretation is not ripe for discussion in any court was still immature.
IBRAHIM
He said that Kenya cannot have the president playing the role of an umpire who is expected to be neutral and act in the interest of the nation in a process where he is a player advocating for his own personal interest and agenda.
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.