Seven issues that will make or break BBI
Chief Justice and President of the Supreme Court Martha Koome (centre) and Deputy Chief Justice and Vice-President of the Supreme Court Philomena Mwilu (third left) with Supreme Court Judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Mohamed Ibrahim, Njoki Ndung’u and William Ouko at the Supreme Court Building in Nairobi.
Supreme Court judges will decide on seven issues that were framed in the petition against the Court of Appeal’s verdict that nullified the Bill to amend the Constitution.
The judgment on Thursday by the judges led by Chief Justice Martha Koome will be final, as it is the court of last resort.
Among the fundamental constitutional questions that the top court is expected to settle is the controversy on whether the president can be sued in his personal capacity for anything done or not done while in office (Presidential immunity).
The High Court and the Court of Appeal said civil proceedings can be initiated against the President in his personal capacity, meaning he does not have pure immunity.
Before settling down to hear the two warring sides, the court singled out seven questions that will determine the fate of the government-backed constitutional amendments under the Building Bridges Initiative (BBI).
Basic Structure
The questions have the potential of breaking or restoring the process.
The second question to be determined is whether the principle of Basic Structure applies in the Kenyan constitution. If so, the court will have to trace its origin and address the issue to finality.
Still on Basic Structure, the bench will 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 the BBI was unconstitutional for failing to follow the four sequential steps. The two lower superior courts said the basic structure principle is applicable to Kenya.
The Supreme Court is expected to determine whether the amendment of any provision of the constitution is subject to an implied limitation.
Further, whether the said limitation can be invoked outside the parameters set out under Chapter 16 which explains the manner of its amendment.
The third issue is related to the legality of President Uhuru Kenyatta's involvement in the proposed amendments in the BBI.
The top judges will determine whether a President can initiate amendment of the Constitution through a popular initiative.
Constitutional amendment
The lower superior courts ruled that the President has no power to initiate an amendment of the Constitution through the popular initiative.
The fourth issue the judges will rule on is 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?
Fifth question in the list is related 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).
The sixth question is 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 a minimum quorum at five commissioners.
Multiple amendments
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.
The seventh controversy is whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.
The Court of Appeal found that a proposed referendum on multiple amendments to the Constitution can be submitted as a single question to voters.
The High Court had on its part held that the 74 clauses proposed for amendment in the Constitution of Kenya (Amendment) Bill - BBI - should have been presented as separate referendum questions.
The High Court had said this not only avoids confusion but also allows voters to decide on each presented amendment question on its own merit.
