Eyes on Supreme Court as BBI ruling draws near

The much-awaited judgment on the constitutional changes proposed in the BBI Bill will either revive or bury the government-backed process that started in 2018.

The judges have been studying the oral and written submissions made by parties to the case after the BBI Bill had successfully been challenged in the High Court and the Court of Appeal.

After conclusion of the hearings, the top court froze all other matters and removed its online cause list presumably to focus on the BBI case, which has the potential to alter the country’s political and governance structure. This saw parties with other pending cases at the apex court getting fresh dates.

And now in the clearest indication yet the BBI judgment could be rendered soon, the Supreme Court has re-uploaded the notice of cause list, indicating resumption of normal operations.

The court’s Deputy Registrar Ole Keiwua is now dealing with various matters, including applications and petitions.

Sources indicated that the seven judges led by Chief Justice Martha Koome have been at a secluded place in South Coast and are scheduled to return to Nairobi next weekend.

They were accompanied by their assistants, researchers and the security teams.

It is not yet clear whether each of the seven judges will write his/her own judgment, as happened at the Court of Appeal, or they will come up with a single judgment.

The judges could either pass a unanimous verdict or there could be variance in their rulings. 

In the latter scenario, there will be two or more decisions – a majority decision, dissenting or concurring decision. The majority decision becomes the ruling of the court.

At the conclusion of the hearings, the Chief Justice said the judgment would be issued on notice, meaning the court is not confined to any definite timelines.

The court’s decision on the BBI will have a bearing on the August 9, 2022 General Election as the judges are expected to rule on whether President Uhuru Kenyatta’s reform plan was constitutional.

The reforms started shortly after the March 9, 2022 ‘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 reforms that were reportedly geared towards ending the “winner takes all” scenario after elections and ethnicity-based politics.

Unconstitutional

The two lower superior courts found the proposed amendments were unconstitutional. The judges held that the President has no authority to push for constitutional amendments through a popular initiative and that the BBI promoters usurped the people's sovereign power.

The Supreme Court is also expected to rule on the proposal to create the office of a judiciary ombudsman who shall be appointed by the President.

The proposed ombudsman would have powers to discipline judiciary officials, including suspending, warning and reprimanding them.

Another proposal in the proposed BBI Bill is enhancement of the number of executive appointees to 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 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 to be determined is constitutionality of the second schedule to the Constitution (Amendment) Bill, 2020 and the quorum of the electoral agency in discharging its constitutional mandate.

The Supreme Court will also determine whether 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 that the BBI was unconstitutional for failing to follow the sequential steps. The two lower superior courts further said the basic structure principle is applicable to Kenya.

On the basic structure doctrine, the apex court is expected to determine whether the Constitution is subject to an implied limitation on the power to amend any of its provisions.

Further, they are expected to clarify whether the said limitation can be invoked outside the parameters set out under Chapter 16, which codifies the manner of its amendment.

Also to be clarified is whether the 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 other question is whether the President loses these rights by dint of his election?

The list also includes allocation of 70 parliamentary constituencies as proposed by the BBI promoters. The appellate court 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 the 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 could be initiated against the President in his personal capacity, meaning he does not have absolute immunity.

Also awaited is a ruling on public participation with regard to the BBI Bill and the quorum status of the IEBC 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, which 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 to be 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.

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