Nairobi — The Supreme Court has sounded the death knell for the constitutional amendment process popularly referred to as the Building Bridges Initiative (BBI) after ruling that it was unconstitutional.
The majority ruling by a seven-judge bench found that President Uhuru Kenyatta’s involvement in the process was unlawful.
Six of the seven judges were in agreement that the President cannot initiate the process.
In a summarized judgement, Chief Justice Martha Koome further stated that the creation of 70 new constituencies was also against the law.
“In the BBI appeal, we have allowed 5 and disallowed 2,” she stated.
The 7-judge bench focused on 7 areas that included basic structure doctrine, whether the President can initiate a popular initiative, creation of 70 new constituencies, whether the President can be sued, public participation, whether the Independent Electoral and Boundaries Commission (IEBC) was properly constituted and the referendum questions.
Majority of the judges agreed that the President cannot initiate the popular initiative, apart from Lady Justice Njoki Ndung’u who argued that the President can initiate the process either in his personal capacity or in his official capacity since he is democratically elected by Kenyans.
She said Kenyans have a right to enjoy representation from their duly elected leaders, through whom they can exercise sovereign power.
6 out of the 7 judges opined that the basic doctrine structure is inapplicable in Kenya.
The judges were of the same judgement that the President cannot be sued while in office.
On the issue of public participation, the judges found that there was reasonable public participation apart from during the second schedule which later introduced the proposal to create the 70 new constituencies.
The Independent Electoral Commission was also found by majority to have been properly constituted when undertaking the process of collecting and verifying signatures.
CJ Koome further announced that they will harmonize the BBI decision, and issue consolidated judgement on Tuesday.