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ELECTION 2022

Key highlights of Justice Smokin Wanjala's BBI verdict

NATIONAL
By Dennis Tarus | Mar 31st 2022 | 2 min read

Justice Smokin Wankala during the reading of the BBI verdict at the Supreme Court on March 31, 2022. [Collins Kweyu,Standard]

Supreme Court Justice Smokin Wanjala on Thursday ruled that the President cannot initiate a popular initiative to amend the Constitution.

"I find it difficult to distance the President from the involvement and initiation of the popular initiative," Justice Wanjala ruled citing Articles 255, 277 of the Constitution.

Below is a summary of Justice Wanjala’s ruling on the BBI initiative.

Basic structure doctrine

Justice Wanjala ruled that the doctrine is not applicable in Kenya insisting that there is no provision in Kenya’s Constitution that is unamendable.

“After soul searching and serious thought I have come to the conclusion that what we are faced with as the Basic Structure Doctrine is no such doctrine, instead it is a school of thought,” he said.

President’s role in the popular initiative

The judge ruled that the President cannot initiate popular initiative under Article 255 and Article 257 of the Constitution.

Justice Wanjala also ruled that the President did initiate the BBI popular initiative.

He further went out to outline the processes involved in the process including the gazettement of the BBI Taskforce as well as the appointment of the BBI Steering Committee – all spearheaded by the President himself with former Prime Minister Raila Odinga.

IEBC's role in delimitation

Justice Wanjala ruled that BBI’s proposal for the creation of 70 constituencies was unconstitutional.

Initiation of civil proceedings on the President

The judge ruled that the President cannot be sued in his private capacity while in office.

“The President cannot be sued in his private capacity for any actions or omissions while in office,” he ruled.

Public participation

Justice Wanjala ruled that IEBC was not required to conduct public participation.

However, he deemed that the promoters of the BBI Bill did not conduct meaningful public participation.

“A process cannot commence with the collection of signatures. Surely the people must be appending their signatures to something; either a draft bill or a general proposition. I conclude therefore that there was no meaningful public participation,” he ruled.

IEBC quorum

The judge said that the Independent and Electoral Boundaries Commission (IEBC) had the requisite quorum by the time of verifying the BBI signatures.

“I find that IEBC was legally constituted during the verification process,” he ruled.

Referendum questions

Justice Wanjala held the view that the issue of referendum questions was not ripe for determination and was therefore premature.

 

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Lenaola, whose argument was similar to that of Chief Justice Martha Koome, said the president does not enjoy untamed power, especially when it comes to constitutional reforms.
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Basic structure can be changed through primary constitutional power, civic education and public participation before a referendum is finally conducted

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