Martha Koome

Chief Justice Martha Koome (right) confers with her deputy,Justice Philomena Mwilu, at the Supreme Court on November 9, 2021 during mention of an appeal on the Building Bridges Initiative constitutional amendment bid.

| Jeff Angote | Nation Media Group

Stage set for final BBI showdown as Supreme Court frames 7 questions

The Supreme Court has formulated seven questions that will determine the fate of President Uhuru Kenyatta’s Building Bridges Initiative (BBI) constitutional reforms plan— a decision that could sway the outcome of 2022 elections.

Judges at the apex court will be assessing a Court of Appeal declaration that the plans to reorganise governance through a referendum as proposed in the BBI Bill were unconstitutional.

Among the questions that the Supreme Court will be grappling with in the final round of the legal dispute that pits governance lobby Linda Katiba against the state is the applicability of Basic Structure Doctrine in Kenya.

The top judges will also determine whether a sitting President can initiate amendment of the constitution through a popular initiative. Another question involves the creation and allocation of the 70 proposed parliamentary constituencies to 28 counties.

The fourth question is on whether the President can be sued in his personal capacity for anything done or not done while in office. The other questions are on public participation in the BBI bill and quorum of the electoral commission at the time it was dealing with the BBI bill, and whether a referendum ballot paper involving multiple amendments should contain multiple or a single question.

The court framed the questions after dismissing a request for recusal of three judges from hearing the case over perceived impartiality. It said claims of bias and impartiality by Mr Isaac Aluochier, a member of the citizens’ lobby group opposed to the BBI, is speculative and lacked evidence.

In the ruling read by Deputy Chief Justice Philomena Mwilu, the court also premised its decision on the doctrine of necessity to have the case heard by the full bench of seven judges owing to public interest. 

Mr Aluochier wanted Justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung'u to stay away from the case because he had initially sought their removal from office over alleged gross misconduct.

He said he filed the petition at the Judicial Service Commission (JSC) in April 2016, which never responded to his petition despite the High Court asking it to do so.

He feared that, with the petition having not been determined, the three judges were likely to be biased against him and that he may not get a fair hearing.

But the court said it had looked and found no evidence of the petition and that the three judges were equally not aware of it. Meanwhile, the court has allowed eight foreign and local constitutional experts to participate in the case as friends of the court.

It said the scholars—professors Migai Akech (Kenya), Richard Albert (USA), Yaniv Roznai (Israel), Rosalind Dixon (Australia), David E. Landau (USA) and Gautam Bhatia (India)—will be valuable in determining questions related to the amendment of the constitution as proposed in the BBI bill.

Other scholars are professors Charles Manga Fombard and Adem Adebe. The court however dismissed a request by the Party of National Unity (PNU) to join the dispute as an interested party as it has not established its stake in the matter. 

Ahead of the hearing scheduled for January 18 to 20, 2022, the court directed parties to file their written arguments within a month (15 days for appellants and a further 15 days for respondents) with a 28-page limit.


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