The Supreme Court has rendered the judgement on the Building Bridges Initiative (BBI) bill.
The bench consisted of Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Supreme Court President William Ouko, Lady Justice Njoki Ndung’u, Justice Isaac Lenaola, Justice Smokin Wanjala, and Justice Mohamed Ibrahim.
In a ruling by a seven-judge bench on Thursday, CJ Martha Koome read the consolidated judgement.
According to Koome, the appeal was allowed on five matters that include 1,4, 5,6, 7.
However, the Chief Justice noted that the appeal was disallowed on 2 and 3.
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The Supreme Court framed the issues as follows;
1. Basic Structure Doctrine does not apply to Kenya.
2. President cannot initiate a popular process. President initiated BBI Bill.
3. Second Schedule proposing 70 constituencies was unconstitutional.
4. President cannot be sued personally while in office.
5. There was inadequate public participation (on the Second Schedule).
6. IEBC was quorate and competent to handle the BBI Bill.
7. Issue of multiple question was not ripe for determination.
The majority of judges found that President Uhuru Kenyatta’s involvement in the process was unlawful.
Six of the seven judges were in agreement that the President cannot initiate the process.
Kick starting the ruling process, Chief Justice Martha Koome was in agreement with the High Court and the Court of Appeal that President Uhuru Kenyatta cannot initiate a popular initiative.
"The President is not permitted to initiate constitutional amendments or changes through a popular initiative route provide under article 257 of the constitution," CJ Koome ruled.
"Civil proceedings cannot be initiated against the president. But immunity of the president under the law does not mean actions of the president cannot be challenged in court.” She added.
Deputy Chief Justice Mwilu ruled that an amendment of the constitution can only be initiated through a parliamentary or popular initiative under Articles 256 and 257 of the constitution
Out of the seven judges, only two agreed on the President initiating a constitution amendment process through a popular initiative.
