Justice Njoki Ndung’u: Constitution has checks against abuse

Supreme Court Judge, Justice Njoki Ndung'u, during BBI ruling at Supreme Court in Nairobi, on Thursday, March 31, 2022 [David Njaaga, Standard]

Supreme Court judge Njoki Ndung’u has found that President Uhuru Kenyatta was not an initiator of the Building Bridges Initiative (BBI) bid to amend the 2010 Constitution.

According to her, although Uhuru is entitled to initiate the process as a citizen and as a representative of the people, there was also no proof that he was a promoter of the initiative.

She held that both Suna East MP Junet Mohamed and former Dagoretti former MP Dennis Waweru approached the Independent Electoral and Boundaries Commission (IEBC) as individuals and not as representatives of anyone. “I have perused carefully all the judgments looking for proper reasons for the decision to exclude the president from the amendment process and I cannot find a logical constitutionally-based explanation for the conclusions and findings of the superior courts on this on this question. I can only term it as interpretation or misadventure if not judicial constitutional overreach or judicial convention,” she said.

Justice Ndung’u disagreed with the Court of Appeal on the president’s involvement by finding there are safeguards to keep him in check and therefore cannot influence the process.

According to the judge, the route to amend the Constitution is either by a popular initiative or a parliamentary route. The popular initiative, she says lies with the numbers and not individuals who may move an amendment.

The judge said that resolving the issue of the president initiating a popular initiative should be contextualised along with the history of Kenya’s constitution-making process.

According to the judge, Kenya’s founding father, Jomo Kenyatta oversaw 15 amendments to the 1963 Constitution during his reign while his successor, President Daniel Moi, oversaw 14 during his regime.

Justice Ndung’u said the two presidents had unfettered powers, including being first, Members of Parliament to exclude Kenyans from the amendment process. However, she said, the 2010 Constitution created checks and balances for the president to not sidestep Kenyans from the amendment process.

The judge found that the record shows that the President however, did not initiate the BBI. According to her, he was not the promoter since Junet and Waweru approached the IEBC as individuals and not even as BBI representatives. At the same time, Justice Njoki found that the basic structure doctrine is not applicable in Kenya. 

The judge also found that IEBC had a quorum and did not require the initiators to provide evidence that they had conducted public participation before submitting the signatures.

She found the second schedule of the BBI Bill was unconstitutional, although there was adequate participation. Justice Njoki agreed with Court of Appeal judge Francis Tuiyott that the issue on referendum questions was not ripe for the courts to determine.