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HomeBreaking NewsLIVE BLOG: Supreme Court Delivers BBI Ruling

LIVE BLOG: Supreme Court Delivers BBI Ruling

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By JOHN MBATI on 31 March 2022 – 9:13 am

Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises on Thursday, March 31, 2022
Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises.
JUDICIAR
  • The Supreme Court is delivering its ruling on the Building Bridges Initiative (BBI) appeal filed by Attorney General Paul Kihara Kariuki.

    Kenyans.co.ke is keeping you updated on the live proceeding. Refresh this page for timely updates. 

    Justice Isaac Lenaola is currently giving his deductions.

    Summary 

    Chief Justice Martha Koome, differed with the Court of Appeal on 5 out of the 7 issues.

    William Ouko differed with the Court of Appeal on 5 out of the 7 issues.

    Justice Isaac Lenaola differed with the Court of Appeal on 5 out of the 7 issues.


    Justice Isaac Lenaola on Multiple Referendum Questions

    12:21: This question was immature to be handled at the Court of Appeal.


    Justice Isaac Lenaola on IEBC Quorum

    12:20: This IEBC was properly constituted.


    Justice Isaac Lenaola on Public Participation

    12:17: Public participation was sufficient, save from the second schedule which the Court of Appeal interrupted.


    Justice Isaac Lenaola on Immunity of the President

    12:16: President cannot be sued in a personal capacity. One can only sue the Attorney General.


    Justice Isaac Lenaola on whether the 2nd schedule on the amendment bill was constitutional. 

    12:14: He says it was unconstitutional.


    Justice Isaac Lenaola on Whether the President Can Initiate a Popular Initiative

    12:12: The President cannot initiate the process by collecting bills and popularising it then retiring to allow others to take charge.


    Justice Isaac Lenaola on Basic Structure Doctrine

    12:11: In summary, the basic structure doctrine does not apply in Kenya.

    It only applies when a new Constitution is being made and not during amendment.


    Justice William Ouko on Multiple Referendum Questions 

    12:03: “Court of Appeal erred in failing to clarify this immature issue,” Ouko deduces.


    Justice William Ouko on IEBC Quorum 

    12:02: Says IEBC was constitutionally mandated to conduct all its business.

    12:01: “IEBC whether it has the maximum of 7 or 3 is mandated to conduct its roles,” Justice Ouko says, disagrees with the Court of Appeal.

    12:00: He is deducing whether IEBC met its quorum at the time it was dealing with the BBI Bill.


    Justice William Ouko on Public Participation

    11:56 am: It is the duty of promoters to garner signatures, 1 million as required.

    He overturns the Court of Appeal ruling on public participation.


    Justice William Ouko on Immunity of the President 

    11:54:The Court of Appeal thus errored on ruling that the President can be sued – Ouko says he enjoys immunity.

    11:54: There is the option of impeachment too which is clearly stipulated.

    11:53: The President’s actions in the office are actions of the state, thus one can institute a suit against the Attorney General, or sue him after he leaves office.

    11:52: Determination of the Court of Appeal on this matter, ruling that the President can be sued, gives the Supreme Court for the first time opportunity to give its say on the matter.


    Justice William Ouko on whether the 2nd schedule on the amendment bill was constitutional. 

    11:50: Agrees with the Court of Appeal and High Court that the 2nd schedule on the amendment bill was constitutional. The law clearly spells out delimitation/constituency creation by IEBC.


    Justice William Ouko on Whether the President Can Initiate a Popular Initiative

    11:45: The President spearheaded the process from its inception and only passed the baton to the BBI chairpersons. He agrees with the Court of Appeal and the High Court.

    Thus he is ineligible to initiate the process and cannot act as a citizen and at the same time claim to exact state authority.

    11:44: Thus there was evidence of state involvement in the initiative.

    11:43: The BBI secretariat that championed BBI emerged out of the blues, but Honourable David Waweru signed an affidavit saying that the BBI was created to unite the nation.

    11:42: The word promoters in Constitution is used in Article 157 to describe the common mwananchi.

    11:30: The term popular initiative has not been described in the Constitution, but in common terms can only be amended by the people.


    Justice William Ouko on Basic Structure Doctrine 

    11:34: Basic structure does not apply to the Constitution of Kenya, Ouko differs with Court of Appeal.

    11:28: In interpreting the Constitution, courts must give directives and not leave more questions than answers, thus they should ensure their rulings are unambiguous – not open to more than one interpretation.

    11:24: Parliament cannot be used to amend the Constitution.

    11:22: Just like India and Germany where the basic structure was applied, it was based on their own history.

    “Constitution of a country is based on their own unique distinction.”

    11:16: Recalls how President Mwai Kibaki signed the 2010 Constitution, thus changing Kenyas’ laws.


    CJ Koome on Multiple Referendum Questions 

    11:08: CJ Koome gives her verdict on whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.

    The ruling that they should be submitted as separate questions was not right for determination.

    Issue of contention 7 out of 7.


    CJ Koome on IEBC Quorum 

    11:07: Says that IEBC was legally and constitutionally composed to handle the BBI bill with its three commissioners at that time.

    11:05: CJ Koome notes that IEBC was sued on the quorum of the electoral commission at the time it was dealing with the BBI Bill.

    Whether the 3 commissioners were mandated to handle the bill.


    CJ Koome on Public Participation

    11:00: Says there was reasonable public participation in the BBI initiative.

    10:56: A promoter conducts public participation before giving IEBC mandate to verify signatures is now deemed unreasonable as IEBC can reject the initiative like in the Punguza Mizigo – CJ Koome says.

    10:52: CJ Koome now rules on public participation and IEBC collection of signatures.

    It is my finding that there was no obligation on IEBC to ensure that promoters of the popular initiative met the threshold.


    CJ Koome on Immunity of the President 

    10:50: CJ Koome says that the Constitution clearly defines how to hold the President accountable and directs on how to initiate an impeachment too.

    Anybody, however, can initiate a proceeding against the President by suing the Attorney General who represents the President.

    The implications of the ruling by the two courts that the President is not above the law are far-reaching and need a clear understanding from this court.

    This interpretation concludes

    10:48: The President acts on whether his power exists or not and any proceedings against him will fall under the immunity provision and there is none stating that he has to seek consultation from the Judiciary.

    10:47: The President not only enjoys functional immunity but also sovereign immunity as head of state and a single representative of the sovereignty of the republic.

    10:46: CJ koome says that the President enjoys immunity as a person and as a President too.

    10:34: CJ Koome’s deduction on Presidential immunity and whether the President can be sued.


    CJ Koome on whether the 2nd schedule on the amendment bill was constitutional. 

    The constitutional threshold was not met on the second schedule therefore it was unconstitutional.

    BBI’s new 70 Constituencies were unconstitutional

    10:37: CJ Koome now gives her deduction on 2nd schedule on the amendment bill was constitutional. The third contentious issue among seven.


    CJ Koome on Whether the President Can Initiate a Popular Initiative

    10:36: The President was involved in the amendment bill and thus I agree with the two courts.

    “The President cannot be blamed for this because it is the promoters who took over the Amendment Bill and used the popular initiative route to pursue the amendment process.”

    10:31: Article 38 (1) gives a citizen the right to make a political choice and must fall under the category of a citizen. State organs or institutions cannot be citizens.

    President acting as a private citizen does not relate with him acting as a President under a state organ.

    10:28: CJ Koome endorses the finding by both Courts that the President cannot endorse the initiative.

    10:23: Direct democracy can only be effected by the people and not their representatives – CJ Koome says on the President initiating a popular initiative.

    “It is a preserve of the citizens who in Kenya are known as the Wanjikus.”

    10:20: CJ Koome now gives a verdict on the second issue of contention – whether the President can initiate a popular initiative.


    CJ Koome on Basic Structure Doctrine 

    10:19: Any amendment to the Constitution must be carried out to strict conformity of the basic structure doctrine- CJ Koome rules, differs with Court of Appeal and High Court.

    10:13: Court of Appeal failed to analyse Chapter 16 of the Constitution and make its own analysis. It failed to appreciate Kenyans were aware of the idea around the basic structure doctrine.

    10:07: The two courts below amended the Constitution through the judgement of the court – CJ Koome on basic structure doctrine.

    “Court of Appeal erred in introducing the fourth pathway in amending the Constitution.”

    10:00: CJ Koome says a crisis can be created by the Judiciary on the amendment of the Constitution by giving power to the Legislature to amend the Constitution rather than the people.

    “The next question that follows is whether it was necessary for the two superior courts to adopt the basic structure doctrine and therefore devise a fourth-way path to amend the constitution outside the three-way path.”

    “We judges should be vigil and not introduce pathways to amend the Constitution,” CJ Koome.

    9:56: The two courts, the Court of Appeal and the High Court did not go into a detailed analysis and did not give the shortcomings of Chapter 16.

    “Kenyans do not want to shift from hyper amendment to ultra rigidity and desired a balance between rigidity and amendment through an enhanced and inclusive participatory process through a referendum.”

    9:54: The CJ notes that constitutional amendments must be ratified by the people through a referendum.

    9:47: The CJ says that analysing the rationale behind Chapter 16 of the Constitution is the first step towards understanding the basic structure doctrine.

    “Before declaring the applicability of the basic structure doctrine in Kenya’s constitution, a court is obligated to take into account our constitutional history.”

    9:41: Every court in the world analyses basic structure on its own as per the Constitution and history of their countries – CJ Koome says.

    “The idea of Basic Structure has not yet been adopted universally,” CJ Koome dissects.

    9:36: Basic structure – CJ Koome notes that the High Court and the Court of Appeal noted that there are certain fundamental features in the Constitution that are not amendable on a case to case basis.

    Four sequential steps have to be followed according to the junior courts -civic education, public participation, constituent assembly debate, and a referendum.

    9:30: Seven issues for contention filed at the Supreme Court will be ruled on today. These include, whether the President can be sued, whether the basic doctrine applies in Kenya, the quorum of the IEBC, the constitutional rights of the President as a citizen, and whether a popular initiative, can be initiated by the President.

    The other is whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.

    9:27: “The High Court identified issues for determination and came up with the judgement which was appealed at the Court of Appeal,” CJ reads. Notes that 8 suits against BBI were filed at the High Court.

    9:24: Martha Koome recalls the handshake that led to the formation of the BBI. Notes that President Uhuru Kenyatta and Azimio La Umoja Presidential aspirant, Raila Odinga announced that they were keen on uniting the nation.

    9:20: The CJ recalls three recent amendment attempts via popular initiatives – the Constitution of Kenya Amendment Bill 2015, Punguza Mizigo and the BBI initiative. Notes that the first two failed.

    9:16: CJ Koome says that the importance of the 2010 Constitution cannot be underestimated and that many people sacrificed to draft and pass it.

    “The history behind the making of the Constitution cannot be buried and forgotten … Courts are required to uphold the constitution by breathing life to all the provisions whilst promoting the dreams and aspirations of the Kenyan people.”

    9:07: CJ Koome is the first to read her verdict.

    9:06: CJ Koome notes that there are over 5,000 pages and the judges will read their final verdict only.

    9:00: CJ Martha Koome opens proceedings, says that all judges will read their verdicts.

    BBI appeal hearing at the Supreme Court ended on January 20 after it was heard for three days, from January 18. The case was filed at the apex court after the Court of Appeal upheld the High Court ruling which invalidated the initiative.

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