SECTIONS

The making of jurisprudence with clarity and firmness

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

The Supreme Court, in the Hon Attorney General and Ors v David Ndii and Ors (the Building Bridges Initiative – BBI Appeal) treated us to what appears like our epic institution has come of age as we had hoped when it was established.

The BBI decision was generally made by the 7-bench Supreme Court devoid of emotion and full of legal reasoning. As I watched each SC Judge read their judgement on television, I could not help but feel proud that we bequeathed ourselves the SC in our 2010 Constitution. As much as their opinions or reasons for their individual judgements were varied, a clear thread of jurisprudence was emerging that firmly established clear points of law and interpretation of the constitution.

They clarified and established the legal positions of important constitutional provisions dealing with the amendments to the Constitution and other key constitutional issues that nineteen judges from of the High Court, Court of Appeal and SC had decided over a period of one year. The SC being the third Court to deal with the BBI case, had to make judgement over seven issues, as quoted from their judgement in paragraph 35 read by the Chief Justice and the President of the SC, Justice Martha Koome as follows:

 (i) Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;

(ii) Whether the President can initiate changes/amendments to the Constitution; and whether a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution;

(iii) Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;

(iv) Whether civil proceedings can be instituted against the President or a person performing the functions of the office of the President during his/her tenure of office with regard to anything done or not done contrary to the Constitution;

 (v) The place of public participation under Article 10 vis-a- vis the role of IEBC under Article 257(4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;

 (vi) Interpretation of Articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC; and

(vii) Whether the interpretation of Article 257(10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.

On the seven issues above, the SC made clear pronouncements thereby and for posterity establishing the legal position in relation to those issues as follows:

 (1) The basic structure doctrine is not applicable in Kenya.

 (2) The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution; that the President initiated the amendment process and this is unconstitutional.

 (3) The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 purporting to demarcate electoral boundaries is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution.

(4) Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary the Constitution of Kenya, 2010.

(5) There was no obligation on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation as it was not part of its constitutional mandate. And there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020.

(6) The IEBC had the requisite composition and quorum to undertake the verification process.

(7) The question whether all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was premature and could not be considered by the SC.