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Supreme Court has reinforced supremacy of the Constitution

Supreme Court judges during the BBI ruling at Supreme Court in Nairobi on Thursday, March 31, 2022. [David Njaaga, Standard]

The Supreme Court BBI decision was the final say on grievances and apprehensions harboured by some Kenyans regarding the very familiar way that the political class had assembled to change the Constitution.

The court reiterated the role of our unique history. They recalled when amendments were viewed as a political tool by the Executive, which laid waste to democracy and its institutions and principles of governance. The judgement, though less scathing than those handed down by the Court of Appeal and the High Court before it, firmly inspires confidence in the ability of the Constitution to protect itself from bastardisation.

The majority finding that the president cannot spearhead constitutional changes under the guise of a popular initiative is significant because it sends a message that presidents and administrations are supposed to defend rather than seek to change the Constitution. In addition, they noted that the Bill's supporters could not purport that the process was a popular initiative. Yet, all the evidence points to presidential and State support, from the handshake to the gazettement of a task force, a steering committee and government launches.

Before 2010, no constitutional provision was considered sacrosanct, including the structure of Parliament, judicial independence, human rights and democracy. However, the attitude and two-thirds Parliament threshold allowed changes that removed the Senate and regional governments, made the Judiciary a branch of the Executive, diminished rights and removed multi-party democracy. The whole point of the 2010 Constitution and the struggle before it was to limit presidential and parliamentary power by buttressing separation of powers and making governance people-centric through public participation and the right to sue the State when the Constitution and rights were under threat.

In rejecting the argument that Kenya has a basic structure that protects specific provisions from amendments, the Supreme Court again referred to our unique and well documented constitution-making history. They found that if the doctrine indeed existed, it would have been elucidated in the constitution-making process and the text of the 2010 document. Moreover, the current Constitution sets out the fundamental amendments, such as devolution, human rights, or judicial independence, must go through a referendum. In finding that the lower courts erred, they cautioned the Judiciary from doing what it accused the Executive of doing, even in the name of protecting the Constitution.

The judges threw out the purported formation and delimitation of 70 new constituencies, including their distribution among certain counties. This was because such a process is prescribed under the Constitution and solely mandated to Independent Electoral and Boundaries Commission (IEBC). Additionally, certain processes and formulas needed to be followed, which was not done in the BBI process. However, the Court found that, in general, public participation was achieved regarding the BBI Bill. The judges also pointed out that Parliament should formulate law on public participation, seeing its centrality under our Constitution.  

Another instance the Supreme Court broke away from the Court of Appeal and High Court was regarding whether the IEBC had a proper quorum and whether it was competent to transact. The judges relied on Article 250(1) of the Constitution, which provides that commissions should have a chairperson and a quorum of three, instead of the IEBC Act, which sets the quorum at five. They reasoned that constitutional provisions trump statute.

Now that the Building Bridges Initiative (BBI) is dead, Kenyans and our leaders should go back to fulfilling the aspirations of the 2010 Constitution concerning good governance, devolution, electoral justice, the rule of law, human rights and accountability.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021