The Supreme Court judges on March 31, 2022, delivered judgment on the Building Bridges Initiative (BBI) appeal after the Court of Appeal and the High Court shot it down in August last year.
Chief Justice Martha Koome first delivered her ruling on seven key controversial matters in the BBI saying the two courts were mistaken on the application of the Basic Structure Doctrine. CJ Koome said this was not applicable in Kenya.
What is Basic Structure Doctrine?
The Basic Structure Doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan, Kenya, and Uganda.
“I disagree with the judgment of the Court of Appeal in regards to Basic Structure,” said Koome.
CJ Koome ruled that a sitting president within Kenyan territory cannot initiate a popular initiative adding that it is a preserve of the citizens
“President ought not to be a player and an umpire in the amendment process of the constitution.”
The CJ ruled that BBI’s new 70 Constituencies were unconstitutional.
With regards to Public Participation, CJ argued that this was met as the proposals in the BBI were approved by 45 of the 47 counties.
On the quorate of the Independent Electoral and Boundaries Commission (IEBC), CJ Koome ruled that the Commission was within its constitutional framework when it undertook verification of BBI signatures.
“IEBC was constitutionally and legally composed when it undertook the verification process under Article 257 of the constitution.”
The CJ also ruled that a president enjoys sovereignty of powers given by his office and cannot be sued during his/her time in office.
