BBI Final Verdict, Justice Koome’s Deliberations

The Building Bridges Initiative(BBI) ruling that everybody was eagerly waiting for has received final deliberations from Justice Martha Koome.

In a nutshell, the final verdict is as follows:

1. The basic structure of the BBI is not applicable in Kenya
2. The President cannot initiate a constitutional amendment through popular initiative.
3. BBI’s new 70 constituencies were unconstitutional.
4. Civil proceedings cannot be instituted against the president during his tenure.
5. There was public participation other than in the 70 constituencies.
6. IEBC was legally constituted with 3 commissioners.
7. Immature to determine the multiple referendum questions

These deliberations come on the back of a constitutional review process, where the Court of Appeal on 25th August 2021 rendered the BBI unconstitutional.

The initiative seeks a referendum to increase government positions, create a new 760 position, increase funding to counties, introduce a prime minister with two deputies, a leader of the official opposition, and a hybrid system to have ministers picked from Parliament among other provisions.

Whether or not the initiative would be stopped lay in the hands of the supreme court, which was to deliver its judgment on a seven-issue framed during the Appeals hearing.

The court was to determine issues related to the Basic Structure Doctrine, whether it is applicable in Kenya and whether the Constitution can only be changed by following the four sequential orders, and the role of the President and state officers in the amendment of the Constitution through popular initiative and immunity of the President.

According to the lower courts’ ruling, the President does not have the power to initiate an amendment to the Constitution through a popular initiative.

The High Court and the Court of Appeal ruled that the BBI initiative was unconstitutional because it did not follow the four consequential steps, including civic education, public participation, constituent assembly, and debate and referendum, citing that the popular initiative is a preserve of the ordinary citizens.

The court also had to rule on the President’s constitutional rights as a citizen, including his right to equal treatment under the law, freedom of expression, and freedom to make political choices.

Another critical issue that was determined is the legality of the 70 new constituencies proposed in the BBI Bill and the issue of public participation in the BBI constitutional amendment process, and the role of the electoral commission.

The High Court and Court of Appeal found that the proposal of adding 70 more constitutions was illegal, as the delimitation of boundaries is the mandate of the Independent Electoral and Boundaries Commission.

The case challenging BBI was first filed at the High Court by activists who opposed the initiative, challenging the content and of and the process by which the BBI Bill was formulated. They challenged the steps that had been and were intended to be taken to amend the Constitution.

The anti-BBI team said President Kenyatta cannot initiate a popular initiative to change the Constitution while still in power.

Article by John Kachibo