The Supreme Court has sounded the death knell for the Building Bridges Initiative but opened a window for the handshake brigade to initiate a fresh constitutional amendments.
In the landmark ruling, the seven-judge bench on Thursday overturned five of the seven grounds the Court of Appeal had used to annul the BBI-driven law change.
Among the key issues determined by the apex court was that the Kenyan Constitution does not have a basic structure, meaning there is no article that cannot be amended so long as the law is followed.
“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 as pronounced by the two superior courts,” the Supreme Court ruled.
This means President Uhuru Kenyatta and his partner, ODM boss Raila Odinga, could bring back a new constitutional amendment at any time, even before the August 9 polls, if they so wish.
The Supreme Court judges led by Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Smokin Wanjala, William Ouko, Njoki Ndung’u and Isaac Lenaona dismantled the basic structure doctrine.
Justice Mohammed Ibrahim dissented.
In a statement to newsrooms, Raila said the BBI process has been upheld.
“We shall deliberate on the way forward and and decide on a future course of action that protects the interests of those who voted to see the amendments come to light,” Raila said.
But Deputy President William Ruto termed the BBI process fraudulent, saying the ruling was a validation it was an illegal and unconstitutional exercise.
“The end of reggae is the end of political conmanship in Kenya,” Ruto said.
However, the BBI brigade swiftly declared the Supreme Court’s finding would pave the way for the return of the BBI reggae, which Raila had insisted was on half-time.
“Reggae is back, its main impediment was the doctrine of basic structure. All seven judges threw it out. All the other issues in this case are nothing but legal musings,” Mutahi Ngunyi, Uhuru’s assistant technical adviser, said.
Suna East MP Junet Mohamed, a co-chair of the BBI Secretariat, welcomed the ruling, saying it had offered the country “judicial clarity on how to amend the Constitution.
“Kenyans, especially future generations, must be glad to know our Constitution can be amended,” he said.
Except for Justice Ibrahim who dissented, the other six judges dismissed the basic structure doctrine as destructive and unsuitable in the Kenyan context as it has not been globally recognised.
Both the High Court and the Court of Appeal had ruled there are fundamental provisions in the Constitution that cannot be amended unless four sequential steps — civic education, public participation, constituent assembly debate and referendum — are followed.
However, the apex court ruled the steps are not necessary in amending the Constitution as that would bring about rigidity and not the intended flexibility in constitutional amendments.
All the judges apart from one denounced the basic structure doctrine. So, it means the right of any Kenyan to propose constitutional amendment has been reinstatedPaul Mwangi
“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,” Koome ruled.
The basic structure doctrine was the biggest and most consequential question framed for determination by the top court after both the High Court and the Court of Appeal affirmed its place in Kenya.
Paul Mwangi, who was the BBI Secretariat joint secretary, said the Supreme Court had affirmed the people can amend the Constitution
“All the judges apart from one have denounced the basic structure doctrine. So, it means that the right of any Kenyan to propose constitutional amendment has been reinstated,” Mwangi said.
He said the reason many Kenyans, especially anti-BBI troops, thought BBI was dead was because the power to do so [amend] had been taken away by the senior [lower] courts, and that “power has been brought back.”
The BBI was the key plank of President Kenyatta’s succession plan as it sought to expand the Executive to accommodate more bigwigs at the national executive to end the winner-take-all syndrome.
The BBI was to introduce the position of prime minister, two deputies, the leader of official opposition in Parliament as well as have ministers appointed from among MPs.
It also proposed enhanced allocation of resources to counties from at least 15 per cent to a mandated 35 per cent.
The President had made a strong case for the BBI constitutional amendments, saying they were a genuine effort to ensure inclusion and readdress political majoritarianism.
He recently said the BBI was “a dream deferred”, which shall be realised.
The Supreme Court also dwelt on President Kenyatta’s role in the push to amend the Constitution. The justices agreed with the two courts that he usurped the powers of citizens in initiating constitutional amendments through popular initiative.
The majority of the judges held that Article 257, in providing for the popular initiative amendment route, was conceived and designed to serve as a citizen-driven process of amending the Constitution, to the exclusion of the President.
“The process of amending the Constitution through the Constitution of Kenya (Amendment) Bill, 2020 was initiated by the President, rendering the subject amendment process unconstitutional as it was contrary to the provisions of Article 257 of the Constitution,” the judges ruled.
Wanjala said there was evidence of state involvement in the BBI process and that the President commanded and spearheaded the process.
“The President only passed the baton to the two co-chairs very late in the day, he cannot act as an ordinary citizen,” he said.
Justice Ndung’u dissented.
She said the President can initiate or move constitutional changes while exercising his constitutional functions as well as under the power delegated to him as a democratically elected representative of the people.
In addition, she held that a popular initiative is based on several steps laid out in Article 257, the success of which depends on the promoter’s ability to attain numerical thresholds at each stage.
“The popular initiative is about numbers, one million signatures, half the county assemblies, two-thirds in Parliament, and a simple majority in the referendum. It is the numbers that count,” she ruled.
She went on, “We don’t need to worry about the President overstepping. Both Kenyatta and Moi were Members of Parliament and used that to amend the Constitution repeatedly.”
While agreeing with the majority, that a popular initiative is the preserve of citizens to the exclusion of the President, Lenaola held that the President did not initiate or promote the Constitution of Kenya (Amendment) Bill, 2020.
In his view, the initiation of the subject Amendment Bill was done by the BBI national secretariat led by Junet Mohamed and Dennis Waweru, and not the President.
On the proposed 70 constituencies that were contained in the second Schedule of the Bill, the court found them unconstitutional, saying it was a late addition that was not subjected to public participation.
The constituencies were distributed by the BBI team in what also triggered acrimony among the handshake team over lack of fairness. Mt Kenya was getting the lion’s share.
The court found the President is immunised, or protected, from civil proceedings during his tenure in office for acts or omissions connected with the office and functions of the Office of the President.
“The two superior courts below erred by attempting to amend the provisions of the Constitution through a judgment,” they ruled.
The court found there is no legal provision obligating the IEBC to ensure promoters of a popular initiative conduct sufficient public participation.
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