Chief Justice Martha Koome was the first justice to indicate that it was going to be a long day. Each of the seven judges, she said, would read their own judgements before a final verdict on the contentious bid to amend the Constitution would be rendered.
Justice Koome drew first blood when she reversed a verdict by six Court of Appeal judges touching on the legality of the push to amend the Constitution.
But it was not an all smiles for the Building Bridges Initiative proponents after Koome agreed with the Court of Appeal that President Uhuru Kenyatta had unlawfully initiated the law-change plan.
The CJ first found that the basic structure doctrine is not applicable in Kenya. Justice Koome faulted the Court of Appeal and High Court for failing to appreciate that Kenyans had structured the 2010 Constitution in such a way that it was not too flexible to be abused by the politicians and neither too rigid such that it would be almost impossible to amend.
She faulted the judges of the lower courts for “creating a fourth pathway to amend the Constitution through judicial fiat.”
Justice Koome agreed with Justice Fatuma Sichale that the Court of Appeal should not have borrowed foreign interpretations to settle the issue of which clauses are amendable.
The CJ stated that the basic structure doctrine “has not matured into a universal norm of constitutionalism.” She cited Bangladesh as among the countries that had adopted the basic structure doctrine. South Africa, Tanzania, and Uganda, she noted, had rejected it.
“Looking at the history, it is clear to me that Kenyans sought to achieve rigidity and flexibility. Kenyans did not want to shift from extremes of hyper-amendments and ultra-rigidity,” she said.
Justice Koome said the constitutional system was not as flexible as both the Court of Appeal and the High Court found, with safeguards in place to shield against hyper-amendments.
The CJ noted that that drafters of the supreme law protected it by creating a layered process that required the collection of signatures, seeking consensus from the 47 county assemblies, the National Assembly and Senate, and a referendum.
Justice Koome also affirmed the Court of Appeal’s verdict that the president cannot initiate a push to amend the Constitution through a popular initiative. This, she noted, was the preserve of Kenyans.
President Uhuru Kenyatta, she observed, was at the heart of the BBI process as there was evidence of his footprints through documents and personally receiving the task force’s report.
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The task force, led by Suna East MP Junet Mohamed and former lawmaker Dennis Waweru, was also faulted by the judge.
President Kenyatta had argued that he was not the initiator of BBI, and that he was entitled to participate in a referendum process “for the sake of Kenya’s peace.”
But Justice Koome found that although the efforts by President Kenyatta and his handshake partner Raila Odinga to unite the country were laudable, the law barred their involvement in a popular initiative.
“State institutions and State organs cannot initiative amendments via popular initiative as provided under Article 257 of the Constitution. I therefore affirm the factual finding that the president was involved in the process.”
Justice Koome also agreed with the majority Court of Appeal judges that President Kenyatta was not heard before the court condemned him.
The judge said that although the court ought to have terminated the case on that basis, she needed to interrogate and settle whether a holder of the presidency enjoys absolute immunity from civil cases.
She disagreed with the second-highest court in the land, which found that the president can be sued in person while in office.
According to Justice Koome, the president enjoys sovereign immunity that shields him from civil suits. She noted that the law provides avenues to keep him in check through a political process or in court.
“Civil proceedings cannot be instituted against the president for anything done or not done while in office,” she said, before adding that the president can be impeached while in office.
Justice Koome also found there was reasonable public participation, but not on the second schedule of the BBI Bill.
She also ruled that there was no law that required the Independent Electoral and Boundaries Commission (IEBC) to compel promoters of the law-change initiative carry out public participation.
At the same time, the judge said, the promoters were not required to conduct the exercise because the process before the county assemblies, Parliament, and the referendum involved the public.
Justice Koome also reversed the finding that the electoral agency did not have the quorum necessary to verify the signatures of citizens who supported BBI.
She agreed with Justice Francis Tuiyott that the issue of whether to have multiple questions or a single-question referendum was premature for the judges to entertain.