Voters were not involved in BBI process, rules Justice Kairu

Justice Gatembu Kairu, one of the seven Court of Appeal judges giving their verdict on the Building Bridges Initiative (BBI) appeal case, has said no evidence produced in court showed the electorate was supplied with adequate information on the process.

While reading his judgement, Justice Kairu said without adequate information, the voters could not make informed decisions. “I'm in agreement with the High Court that there is a legal requirement under article 10 of the Constitution for voters to be supplied with adequate information to make informed decisions. There is no evidence that was done,” Justice Kairu said.

He says the president's participation in the BBI process was not in his capacity as a private citizen, but in an official capacity. "The material shows that the president did not participate in the BBI process as a citizen. The Gazette notices show he did so in his official capacity," Justice Kairu added.

He also found that the doctrine of basic structure was applicable to the Constitution. He found that the Head of State cannot initiate amendment by popular initiative thus agreeing that the petitions were liable to trial in a court of justice.

“On whether a proposed constitutional amendment amounts to dismemberment or annulment is a matter of judicial interpretation,” he ruled.?

On IEBC quorum, Justice Kairu said reducing the quorum to below five would mean the amendment never happened at all. The judge said despite being served via email on December 21, records from the High Court showed there was no appearance for the first respondent, the president.

“The president can be sued in his personal capacity during his tenure,” he concluded.