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The Summary of Supreme Court BBI Ruling

Supreme Court BBI Ruling

The Supreme Court, in a majority judgment on Thursday, affirmed that the process to amend the constitution through the Building Bridges Initiative (BBI) was illegal.

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.

The ruling was delivered by a seven-judge comprising Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Justices William Ouko, Isaac Lenaola, Mohammed Ibrahim, Smokin Wanjala, and Njoki Ndung’u.

The judges found that the purported popular initiative was initiated by President Uhuru Kenyatta and not the common.

Summary of Supreme Court BBI Ruling

Chief Justice Martha Koome

  • Basic structure not applicable in Kenya
  • The President is not permitted to initiate constitutional amendments through popular initiative
  • The Second schedule for the creation of new Constituencies was unconstitutional
  • Civil proceedings cannot be instituted against the President during his tenure
  •  There was reasonable public participation on the BBI bill, save for schedule 2 of the Bill
  • IEBC was legally constituted with three Commissioners
  • Multiple referendum questions not ripe for determination

Justice William Ouko

  • Basic structure doctrine not applicable in Kenya.
  • The president is not permitted to initiate constitutional changes through the popular initiative.
  • Second schedule is unconstitutional because there was no public participation.
  •  Civil proceedings can’t be instituted against the president during their tenure of office.
  • IEBC had quorum.
  • Multiple referendum questions not ripe for determination

Justice Isaac Lenaola

  • Basic structure applies only to making a new Constitution
  • President cannot initiate constitutional amendments; Uhuru was not the promoter
  • Boundaries are the work of IEBC thus Schedule 2 was unconstitutional
  • President cannot be sued in his private capacity
  •  There need for a law on public participation
  • IEBC had the quorum necessary to handle BBI signatures
  • Issue of referendum questions was premature

Justice Smokin Wanjala

  • Basic structure doctrine not applicable in Kenya
  • The President initiated the BBI popular initiative
  • The 70 constituencies in the BBI bill were unconstitutional
  • President cannot be sued privately while in office
  • There was no sufficient public participation
  • IEBC had the requisite quorum
  • The issue on referendum questions is not ripe for determination

Justice Njoki Ndung’u

  • Basic structure is not applicable in Kenya.
  • President can initiate and promote a popular initiative
  • Second Schedule proposing additional 70 constituencies unconstitutional.
  • President is immune from civil court proceedings
  •  There was public participation
  • IEBC had quorum
  • The issue of referendum questions was premature

Justice Mohamed Ibrahim

  • The basic structure doctrine is applicable in Kenya
  • President cannot act as the initiator of popular initiative amendments
  • The second schedule was unconstitutional
  • No civil proceedings can be instituted against the President
  • Public participation undertaken was not sufficient or reasonable
  • IEBC not properly constituted but it’s decisions were lawful

 Deputy Chief Justice Philomena Mwilu

  • Basic structure does not apply in Kenya.
  • President cannot directly initiate change to the constitution
  • The second schedule on additional 70 news constituencies unconstitutional
  • President cannot be sued during tenure
  • No public participation
  • IEBC had quorum
  • The issue of referendum questions was premature

Also read,

CJ Koome BBI verdict

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