Koome verdict: Key highlights of what CJ said about BBI

The Supreme Court on Thursday will deliver its judgment on the contentious Building Bridges Initiative (BBI), following its nullification by the high court and the court of appeal.

Here is what Koome said in her ruling:

1. Basic structure not applicable in Kenya

2. The President is not permitted to initiate constitutional amendment through popular initiative

3. The Second schedule for the creation of new Constituencies was unconstitutional

4. Civil proceedings cannot be instituted against the President during his tenure

5. There was reasonable public participation on the BBI bill, save for schedule 2 of the Bill

6. IEBC was legally constituted with three Commissioners

7. Multiple referendum questions not ripe for determination

The High Court nullified the initiative on May 14, 2021, in a scathing ruling, a judgment that was upheld by the Court of Appeal on August 25, 2021.

The 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'.

Chief Justice Martha Koome said:

• Although I have said enough about why I disagree with the judgment of the Court of Appeal bench regarding the application of the basic structure of the 2010 Constitutional order, I will briefly highlight some of the critical aspects which were not considered by the two superior courts and if the judges had done so, perhaps they would have come to a different opinion.
• The superior courts failed to appreciate that the concern with the culture of hyper amendments had already been taken into account during the drafting of the 2010 Constitution.
• This is informed by the reality that the Constitution to a larger extent is self-contained and self-regulating in dealing with the legacy of abusive constitutional amendments in the former constitution amendments.
• The Court of Appeal failed to analyze the provisions of Chapter 16 of the Constitution and arrived at its own conclusion on the shortcomings of the three-tiered process.
• There have been multiple attempts to amend the constitution which have all been unsuccessful, meaning that the amendment process is not flexible as in the Indian case.
• The court of appeal failed to take into account that Chapter 16 is one of the entrenched parts of the Constitution under Article 255 (I) therefore it could not be amended by the courts through the created fourth pathway of amending the Constitution without following the constitutionally ordained amendment process provided for under article 255 (I) of the Constitution.
• The Court of Appeal failed to appreciate that Kenyans were aware of the idea of the basic structure doctrine during the Constitution-making phase in light of the legacy of the case of Njoya and yet did not embrace the idea of a veto to the amendment power as is presented in the basic structure doctrine.
• It’s evident that the decision on the application of the basic structure doctrine within Kenya’s constitutional system was largely turned on historical inquiry to clarify and provide an interpretative guideline on the intent of the Kenyan people during the drafting of Chapter 16.
• In the end, I find that the basic structure doctrine and the four sequential steps for amendment as described by the high court and the majority of the court of appeal are not applicable in Kenya under the constitution.

Can the president initiate a popular initiative law review?

As far as the president’s actions in setting up the BBI task force and BBI steering committee to further the agenda of building national unity are concerned, in my view, these actions cannot be faulted. Indeed they are allowable acts of statesmanship.

(Edited by Mercy Asamba)