The Supreme Court will deliver its judgement on the Building Bridges Initiative (BBI) on Thursday, the court’s registrar has announced ending the rising anxiety among Kenyans and the country’s political class.
The case involves proposal to amend the 2010 Constitution and the dispute at the Supreme Court pits government against a citizens’ voluntary group opposed to the proposed amendments.
The much awaited judgment will either revive or burry the government-backed process that started in 2018.
The legal bid is also likely to shake up the country’s political and governance system.
After conclusion of the hearings on January 23, 2022, the judges led by Chief Justice Martha Koome retreated to make write their judgment.
It is not yet clear whether each of the seven judges will come up with his/her own judgment like it happened at the Court of Appeal or they will come up with a single judgment.
Being multiple judges deciding together on the same case, there is likelihood of a disagreement on the outcome of the case considering that it also involves various issues and at least seven questions.
In such circumstances there will be two or more decisions -a majority decision, dissenting or concurring decisions. Majority decision becomes the ruling of the court.
The court’s decision on the BBI is so crucial that it may sway the forthcoming national elections as the judges will rule on whether President Uhuru Kenyatta’s reform plan and introduction of expanded Executive are constitutional.
The President together with former Prime Minister Raila Odinga have been on one side of the dispute while Deputy President William Ruto has been on the other side.
The reforms started in 2018 shortly after the March 9 ‘Handshake’ between President Kenyatta and Mr Odinga.
The top Judges are expected to assess the High Court and Court of Appeal’s decisions to reject the sweeping reforms that were said to aim at ending the “winner takes all” and ethnic politics.
The two lower superior courts found the proposed amendments were unconstitutional for various reasons including that the President has no authority to push for Constitutional amendments through popular initiative. Another reason was that the BBI promoters usurped the people’s sovereign power.
So tricky is the situation because the Supreme Court is expected to rule on the many proposals contained in the Constitutional Amendment Bill (2020) –BBI- among them recommendations regarding creation of the Judiciary Ombudsman who shall be appointed by the President.
The proposed ombudsman will have powers to discipline Judiciary officials, including suspending, warning and reprimanding them.
Another proposal concerning the Judiciary is enhancement of the number of executive appointees in the JSC from four to five.
The Judiciary had initially protested against the proposal saying “the unusually heavy tilt towards Executive representation in the JSC compared to other Commissions has the potential danger of entrenching Executive authority in the JSC and by extension, in the Judiciary”.
Other key issues to be determined by the top court relate to the Basic Structure Doctrine, the role of the President and state officers in the amendment of the constitution through popular initiative and immunity of the president.
Also in the list is constitutionality of the second schedule to the Constitution (Amendment) Bill, 2020 and the quorum of the electoral Commission in discharging its constitutional mandate.
The Supreme Court will be grappling with is the applicability of Basic Structure Doctrine in Kenya.
It will determine whether the Kenya’s Constitution can only be changed by following four sequential steps -civic education, public participation, constituent assembly debate, and a referendum.
Both the High Court and the Court of Appeal ruled the BBI was unconstitutional for failing to follow the sequential steps. The two lower superior courts said basic structure principle is applicable to Kenya.
On Basic Structure Doctrine the Supreme Court is expected to determine whether the constitution is subject to an implied limitation on the power of amendment of any of its provisions.
Further whether the said limitation can be invoked outside the parameters set out under Chapter 16 which codifies the manner of its amendment.
The top judges will also determine whether a President can initiate amendment of the Constitution through a popular initiative. The lower superior courts ruled that the President has no power to initiate an amendment of the Constitution through the popular initiative.
The court will rule on the constitutional rights of the President as a citizen, including his right to equal treatment under the law (Article 27), freedom of expression (Article 33) and freedom to make political choices (Article 38). The question whose answer is expected from the court is does the president lose these rights by dint of his election as such?
Further in the list is a question relating to allocation of the 70 parliamentary constituencies proposed by BBI promoters. The court of appeal and the High Court found that the proposal was illegal as delimitation of boundaries is the mandate of the Independent Electoral and Boundaries Commission (IEBC).
Another question is whether President can be sued in his personal capacity for anything done or not done while in office (Presidential immunity). The lower superior courts said civil proceedings can be initiated against the President in his personal capacity, meaning he does not have pure immunity.
Also to be determined is the question related to public participation in the BBI Bill and the quorum of the electoral commission at the time it was dealing with the BBI Bill.
The main issue for settlement will be the object of Article 250(1) of the Constitution that sets the minimum number of commissioners of the IEBC at three while the IEBC Act places minimum quorum at five commissioners.
If the commission is considered legitimately constituted with three commissioners, the court will be expected to resolve the question whether an Act of Parliament can set a higher legitimacy threshold for an independent commission than that set by the Constitution.
Another issue is whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question. BY DAILY NATION