The 7 questions that will determine fate of BBI at Supreme court

Supreme Court judges

Supreme Court judges during a sitting on November 9, 2021.

Photo credit: Jeff Angote | Nation Media Group

The Supreme Court has framed seven questions that will determine the fate of the government-backed constitutional amendments under the Building Bridges Initiative (BBI). 

First, the applicability of Basic Structure Doctrine in Kenya is among the questions that the Apex court will be grappling with in the final round of the legal dispute that pits a citizens voluntary group (Linda Katiba) against the government.

The top judges will also determine whether a President can initiate amendment of the Constitution through a popular initiative, allocation of the 70 proposed parliamentary constituencies and whether President can be sued in his personal capacity for anything done or not done while in office (Presidential immunity).

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 refferendum ballot paper involving multiple amendments should contain multiple questions or a single question.

Dismissed recusal of judges

The court framed the questions after dismissing a request for recusal of three judges from hearing the BBI case over a perceived impartiality. 

The court said the alleged bias and impartiality by Mr Isaac Aluochier, a member of the citizens' voluntary group opposed to the BBI, is speculative and there was no evidence to support the same. 

BBI case hearing at the Supreme Court

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.

He explained the JSC has never responded to his petition despite the High Court asking it to do so. He feared that with the petitions having not been determined, the three judges were likely to be biased against his case on the BBI and that he may not get a fair hearing. 

But the court said it had taken a step to confirm existence of the removal petition at the JSC, and found that there is nothing on record about the said petition. 

The three judges are also not aware of existence of the petitions, the court said. 

Further, that having lodged his petition at JSC Mr Aluochier should have allowed the same to take its cause since the Commission is independent body and operates separately from the court. 

Mr Aluochier's application for disqualification of the three judges was not supported by any of the parties but was opposed by one. 

At the same time, the court allowed eight foreign and local constitutional experts to participate in the case as friends of the court. 

Supreme Court allows constitutional experts to participate in BBI case

It was held that the scholars led by Professors Migai Akech (Kenya), Richard Albert (USA), Yaniv Roznai (Israel), Rosalind Dixon (Australia), David E. Landau (USA) and Gautam Bhatia (India) will be valuable and of assistance to the court in determining questions related to the amendment of the Constitution as proposed in the BBI bill. 

The 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. It held that PNU has not established personal interest or stake in the matter. PNU has also not shown what prejudice it would suffer unless it participates in the appeal.

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