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BBI journey to the Supreme Court was rocky from the start

By Kamau Muthoni and Paul Ogemba | Apr 3rd 2022 | 3 min read
By Kamau Muthoni and Paul Ogemba | April 3rd 2022

Solicitor General Kennedy Ogeto (Second left) with a section of lawyers during BBI ruling at Supreme Court in Nairobi on March 31, 2022. [David Njaaga,Standard]

All parties walked out of the tent either happy or disheartened.

Both the Building Bridges Initiative proponents and opponents claimed victory and loss in equal measure.

The umpire, a seven-judge Supreme Court bench led by Chief Justice Martha Koome dissected the seven issues.

One by one they decided, just like lower courts did and killed the Building Bridges Initiative to amend the Constitution.

For the BBI proponents, their patient was not too hopeless after all as the court agreed on four issues and removed the sole roadblock that made it almost impossible to amend the Constitution.

The basic structure doctrine being out of the way, and being guided on what to do, they may gather steam again and restart the process.

Nobody can stop reggae, Raila Odinga had said, as he sauntered across the country drumming up support for the BBI, a move sanctioned by President Uhuru Kenyatta.

However, the split on the BBI case continued to the Supreme Court. This was the same in the High Court and Court of Appeal. In the High Court, the verdict was unanimous.

Justices Joel Ngugi, Jairus Ngaah, Teresiah Matheka, George Odunga and Chacha Mwita held that Building Bridges Initiative was unconstitutional and that President Kenyatta had breached Chapter Six of the Constitution.

Nevertheless, the court was split on whether he was justified or had powers to appoint the BBI task force.

Justice John Mativo had said that the president was right and the five-judge bench found he breached Chapter Six of the Constitution.

Rationality tests

“The president cannot be said to have acted ultra vires the Constitution. He acted intra vires in taking steps to achieve this noble constitutional requirement,” Justice Mativo found in a case filed by Thirdway Alliance challenging the formation of the BBI task force.

“The president’s decision meets both the proportionality and rationality tests which are core requirements for the decision to pass the principle of legality test.” 

Six issues were raised by  David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei at the High Court.

However, it was not all doom and gloom for the president and the BBI task force as Justice Jairus Ngaah threw out a separate case filed by Kenyans living in the diaspora in December last year.

Kenyans in diaspora representative James Gitau lamented that they had not been incorporated in the BBI process. 

After a near chaotic 2017 presidential election, a historic handshake between Uhuru and Raila on March 9, 2018, birthed what was billed as the bullet to slay perennial ethnic wars during elections.

The team gathered views from Kenyans of all walks of life and documented them in a recommendation sold as a cure for all the country’s social woes - negative ethnicity, political antagonism and corruption, among others.  

However, the Court of Appeal dashed their hopes by affirming the High Court’s verdict.

Unlike High Court, the CoA was split on the eight issues which were raised.

The judges were unanimous on five issues which included the matter that the High Court condemned President Kenyatta without hearing him.

However, they could not agree on nine issues which included whether BBI was constitutional. Justice Fatuma Sichale found herself on the minority side.

Court of Appeal president Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu and Francis Tuiyott agreed on the majority of issues raised by the Ndii’s team and affirmed the High Court’s judgment.

Meanwhile, the Supreme Court deliberated on seven issues.

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