Mohamed Ibrahim: Kenya has grappled with question of basic structure

Supreme Court Judge, Justice Mohamed Ibrahim, during BBI ruling at Supreme Court in Nairobi, on Thursday, March 31 2022. [David Njaaga,Standard]

Kenya like any other country has grappled with the question of the basic structure of the Constitution, Supreme Court Judge Ibrahim Mohamed has said.

While delivering his verdict on the Building Bridges Initiative Thursday, Justice Mohamed said in his tracing of history with regards to the basic structure, he established that even Justice Aaron Ringera grappled with the question.

He said it is however documented that any alteration to the basic structure can only be done with the full involvement of citizens through a referendum.

“The question on the basic structure is not entirely new to Kenya because it has been here and we continue to grapple with it. Any amendments should however be through proper consultations and framing of the amendment questions,” Mohamed said.

The judge maintained that in his view, such a basic structure can be changed through primary constitutional power, civic education and public participation before a referendum is finally conducted.

With regards to whether a sitting President can initiate an amendment to the constitution through a popular initiative, Justice Mohamed said the framers of the constitution were of the view that such a move is a preserve of the ordinary citizens.

He said although the law does not make any qualifications on who may or may not promote an amendment through a popular initiative, the entire process must be citizen-driven.

“The president ceases to be an ordinary citizen when he assumes power. He becomes a symbol of national unity and must thus remain neutral in such matters,” said the judge.

He said it is evident in his view that right from the handshake to signature verification, the president had involved himself in the process.

Mohamed said matters on the delimitation of boundaries, were unconstitutional as IEBC which is mandated with the task was not fully involved.

He said instead, the task force went ahead to make proposals and directed IEBC on where to delimitate while ignoring the aspect of public participation.

The judge said he was in agreement with the other justices that no civil proceeding can be instituted against a sitting president.

“I hold the view that by the time the court stopped IEBC from involving itself in the matter, there was minimal public participation,” he said.

He however said IEBC was properly constituted when it undertook the signature verification.

Justice Mohamed said with regards to the interpretation of Article 257(10) on whether the referendum question was to be presented as a single question or not, the issue was not ripe for determination.

“Being a public interest matter, every party shall bear its own cost,” said Mohamed.