Supreme Court Judges

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.

| Jeff Angote | Nation Media Group

Supreme Court judges retreat to write BBI verdict 

What you need to know:

  • Supreme Court judges to decide the fate of the Building Bridges Initiative.
  • The two rival sides in the contest are hoping their wishes will carry the day.

The judges of the Supreme Court have retreated to decide the fate of the Building Bridges Initiative (BBI) after three days of hearing submissions on the proposal to change the country's Constitution. 

The Attorney-General and the Independent Electoral and Boundaries Commission (IEBC) used their last chance yesterday to persuade the judges that the BBI was within the law and that the results of 50 by-elections conducted between 2018 and September 2021 risk being declared illegal.

The justices did not give a date for the judgment but said they would issue a notice once ready.

Their decision will have a major implication, especially if they allow the BBI to resume, as the IEBC would have to hold a referendum, with the General Election just six months away. 

BBI proposals include a push to expand the Executive and create positions that President Kenyatta and Orange Democratic Movement (ODM) leader Raila Odinga were said to be banking on to craft a coalition ahead of the August General Election. 

The AG and the electoral commission urged the seven-judge bench to overturn the rulings of the High Court and Court of Appeal, which declared the BBI unconstitutional.

The lower courts also stopped the IEBC from conducting a referendum on the Constitution of Kenya (Amendment) Bill.

Attorney-General Paul Kihara Kariuki asked the apex court to allow the process to resume “since the power of making a Constitution is primordial and belongs to the people”. 

Public participation

“The power to amend or make a Constitution cannot be regulated by a court. The people have the right of reserving to themselves how to use the power. The people have set out the route they want to take and that is through Articles 255 and 257,” the AG’s lawyer George Oraro said. 

The court’s role, Mr Oraro added, is to ensure that the provisions for exercising the primary constituent power are followed. 

Mr Paul Nyamodi, another lawyer for the AG, said had the BBI drive been allowed to run its course, public participation would have taken place. 

“It did not take place because the process was stopped by the courts,” Mr Nyamodi said.

On the President’s involvement in the BBI, the AG said Mr Kenyatta appointed a 14-member task force and gazetted the steering committee in line with his Constitutional mandate.

At the time of the launch and appending of his signature, the AG said, the President was exercising his right as an ordinary citizen.

“At general level, the President is a citizen and enjoys constitutional rights like [any] other person, including equality before the law, freedom of expression and political rights. In pursuance of those rights, he can initiate a popular initiative to amend the Constitution in order to enhance national unity, promote respect for diversity and ensure protection of human rights,” Mr Nyamodi said. 

The IEBC pleaded with the top court to find that it had no obligation to ensure the BBI promoters complied with requirements of public participation before transmitting the Bill to county assemblies.

Proposed referendum

“The constitutional mandate as set out in Article 257 does not require the IEBC to ensure the promoters of a constitutional amendment Bill have conducted public participation with respect to the Bill as part of the requirements for verification,” its lawyer Githu Muigai said. 

“The commission’s mandate is limited to voter education for the purposes of ensuring that Kenyans are familiar with the processes governing a referendum. This only comes into play once the President issues a notice to the IEBC to hold a referendum.”

Lawyers Eric Gumbo and Justus Munyithya also asked the Supreme Court to declare that IEBC handled the BBI Bill legally and that it was quorate to commence the verification of signatures.

The electoral agency asked the judges to overturn the Court of Appeal’s finding that a proposed referendum on multiple amendments of the Constitution can be submitted as a single question to voters. 

The advocates said the matter of whether the BBI Bill was supposed to be voted for as an omnibus Bill or in form of multiple questions, was not controversial. 

“The issue of the questions to be framed in a referendum situation was not ripe. The IEBC had not been invited to make a determination whether or not it would formulate multiple questions,” the lawyers told the Supreme Court judges.

However, critics, including activists and human rights groups, who successfully scuttled the BBI in the lower courts, urged the judges “to bury the process forever because it violates the law”. 

“The electoral commission did not have a simple, accessible mechanism for Kenyans to check whether their details were in the list of voters who endorsed the Bill,” Ms Caroline Kituku for the Muslim for Human Rights (Muhuri), told the court.

IEBC quorum

“Although the IEBC administrative procedures — which were later found to be illegal — provided for two weeks for voters to check and confirm their details, the IEBC reduced the period to five days.”

 Dr John Khaminwa for Kituo cha Sheria, said the proposed amendments were aimed at giving ethnic kingpins top State positions.  

“The amendments contained in the Bill are to give tribal leaders jobs. People from small ethnic communities will suffer because they will be discriminated [against] by the majority,” Dr Khaminwa said. 

“Let us not buy the idea by BBI promoters that we shall have a cohesive society.”

Ms Esther Ang’awa for Linda Katiba urged the court to reject the argument that the IEBC quorum for conducting business is the same as prescribed by the Constitution in regard to the composition of the commission.

“Quorum is not the same as composition. Currently, the IEBC has seven commissioners. If we agree that the minimum membership of three as set out in the Constitution can be used to conduct business, it means a decision of three is binding,” Ms Ang’awa said. 

“It would also mean a decision of four members is binding because they are the majority.”

The advocates said Kenyans were excluded from the process and that the BBI promoters failed to follow due procedures and process.