• Justice William Ouko said popular initiative can only be carried by the people and not the president.
• He said the president cannot act as an ordinary citizen because he is not. The entire initiation process of the BBI was irredeemably flawed.
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The Supreme Court is expected to give a ruling on the BBI on Thursday.
Below are highlights of the ruling of Justice William Ouko on the issues raised about the Building Bridges Initiative
Was IEBC fully constituted?
The constitution provides that the commission should be constituted of three and not less than five commissioners. I arrive at the conclusion that the three commissioners of the IEBC were properly constituted and competent to carry out all its constitutional and statutory duties.
Does the basic doctrine structure apply to Kenya?
I would set aside the judgment of the Court of Appeal and hold that to the extent that the basic stature doctrine limits the amendment power contrary to the express terms of Chapter 16 of the Constitution. It does not apply to the Constitution of Kenya.
Can the president initiate a popular initiative law review?
The popular initiative can only be carried by the people - ordinary citizens. There is evidence of state involvement. The president as a matter of fact commenced and spearheaded the process and only passed on the baton to the two secretariats when it was too late. The president cannot act as an ordinary citizen because he is not. The entire process was irredeemably flawed.
Can the president be sued in his personal capacity?
The actions of the president are actions of the state and not personal. Any person aggrieved by the actions of the state power by the president has recourse by naming the attorney general as the respondent or instituting a civil action at the end of the president's tenure. And of course, there is the option of impeachment by parliament. For these reasons, I will set aside the judgment of the Court of Appeal.
Framing of the referendum questions
The issue was premature. The draft bill had not been returned to the IEBC from parliament. The court of appeal erred in failing to set aside the determination of the high court on this issue.
Was there sufficient public participation?
Whether or not there was public participation is a matter of evidence. The burden of proof is always upon him who affirms and not on the one who denies it. Not a single person was presented to support the statement and to rebut the evidence in support of public participation. For these reasons, I will set aside the determination of the Court of Appeal on the question of public Participation.