The Supreme Court delivered its ruling on the Building Bridges Initiative (BBI) appeal filed by Attorney General Paul Kihara Kariuki.
Kenyans.co.ke kept you updated on the live proceeding as indicated herein.
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Read the final verdict here: Blow to Uhuru, Raila as Supreme Court Rules on BBI
Summary
Chief Justice Martha Koome differed with the Court of Appeal on 5 out of the 7 issues.
Justice William Ouko differed with the Court of Appeal on 5 out of the 7 issues.
Justice Isaac Lenaola differed with the Court of Appeal on 5 out of the 7 issues.
Justice Njoki Ndung'u differed with the Court of Appeal on 7 out of the 7 issues.
Justice Smokin Wanjala differed with the Court of Appeal on 5 out of the 7 issues.
Justice Ibrahim Mohamed differed with the Court of Appeal on 2 out of the 7 issues.
Deputy Chief Justice Philomena Mwilu differed with the Court of Appeal on 3 out of 7 issues.
Deputy Chief Justice Philomena Mwilu on Multiple Referendum Questions
14:51: This is a non-issue and precious waste of judicial time.
Deputy Chief Justice Philomena Mwilu on IEBC Quorum
14:50: Says IEBC was properly constituted.
Deputy Chief Justice Philomena Mwilu on Public Participation
14:49: No reasonable public participation.
Deputy Chief Justice Philomena Mwilu on Immunity of the President
14:48: President cannot be sued during his tenure of office.
Deputy Chief Justice Philomena Mwilu on whether the 2nd schedule on the amendment bill was constitutional
14:45: Says it is unconstitutional.
Deputy Chief Justice Philomena Mwilu on Whether the President Can Initiate a Popular Initiative
14:40: President cannot initiate the bill.
Deputy Chief Justice Philomena Mwilu on Basic Structure Doctrine
14:45: The Constitution of Kenya has a basic structure, but the basic structure doctrine is not derivable from our Constitution and does not apply in the Kenyan constitutional context.
Justice Ibrahim Mohamed on Multiple Referendum Questions
14:32: Issue not ripe for determination.
Justice Ibrahim Mohamed on IEBC Quorum
14:32: IEBC was not properly constituted
Justice Ibrahim Mohamed on Public Participation
14:32: No sufficient public participation
Justice Ibrahim Mohamed on Immunity of the President
14:32: Says Uhuru cannot be sued.
Justice Ibrahim Mohamed on whether the 2nd schedule on the amendment bill was constitutional
14:32: This was unconstitutional
Justice Ibrahim Mohamed on Whether the President Can Initiate a Popular Initiative
14:31: Says that the President initiated the BBI initiative.
Justice Ibrahim Mohamed on Basic Structure Doctrine
13:50: Legal doctrines and principles are often traceable to a particular school of thought and more specifically to certain scholars who sought to elaborate on them.
Finds that the Basic Structure Doctrine is applicable to Kenya and can only be altered through the primary Constitution power which is the unbound power of the people to make or unmake the constitution
Justice Smokin Wanjala on Multiple Referendum Questions
13:44: This interpretation is not ripe for discussion in any court - still immature.
Justice Smokin Wanjala on IEBC Quorum
13:42: Deduces that the IEBC met its threshold while handling BBI. Disagrees with the Court of Appeal and High Court.
Justice Smokin Wanjala on Public Participation
13:39: Says there was no obligation on IEBC to ensure that promoters of the popular initiative met the threshold.
Adds that promoters did not undertake purposeful or meaningful public participation.
Justice Smokin Wanjala on Immunity of the President
13:35: Once a president, always a president. Smokin says the President cannot be sued in his private capacity during his tenure, but after he retires.
"The President can on occasion be sued where or if he violates the Constitution and if he violates any other law when he is not acting in his capacity as President," he deduced.
Justice Smokin Wanjala on whether the 2nd schedule on the amendment bill was constitutional.
13:34: The second schedule was unconstitutional.
Justice Smokin Wanjala on Whether the President Can Initiate a Popular Initiative
13:24: The President cannot initiate what is referred to as a popular initiative.
The President did initiate this popular initiative.
Justice Smokin Wanjala on Basic Structure Doctrine
13:24: "Basic doctrine is not applicable in Kenya. Contrary to what was decided by the Superior courts, there is no provision in our constitution that is unamendable."
13:18: What we are faced with as basic structure doctrine is a school of thought or juristic device and not a doctrine in itself.
13:16: We at the Supreme Court may not disregard it altogether and I have to explain it in detail like my colleagues.
Justice Njoki Ndung'u on Multiple Referendum Questions
13:11: Provisions of section 9 are unconstitutional and the matter is still premature to be determined.
Justice Njoki Ndung'u on IEBC Quorum
13:09: Says that IEBC met the quorum. She has disagreed with the Court of Appeal and the High Court.
Justice Njoki Ndung'u on Public Participation
13:08: The opposers did not provide sufficient evidence that public participation did not take place at the County Assembly level.
Her finding - there was public participation at the County and the National levels.
13:07: Promoters were not required to take public participation at this juncture.
Adds that while one is availing their signatures to promote the bill, they ought to have understood the bill and ask all relevant questions.
She differed with the Court of Appeal and High Court that there was no public participation.
13:06: She notes that There was no obligation on IEBC to ensure that promoters of the popular initiative met the threshold.
Njoki adds that there is no law that expressly requests for 1 million signatures but there is one that requests for a bill with 1 million signatures.
Justice Njoki Ndung'u on Immunity of the President
13:01: "The President has a unique position in the Constitutional scheme and has the responsibility to promote and enhance the unity of the nation."
Says by creating the BBI task force, the President was within his right and did not contravene the Constitution.
Adds that anyone aggrieved can impeach the President as stipulated by the Constitution.
Justice Njoki Ndung'u on whether the 2nd schedule on the amendment bill was constitutional
12:58: "Says the second schedule and creation of 70 new constituencies was unconstitutional.
Justice Njoki Ndung'u on Whether the President Can Initiate a Popular Initiative
12:52: Faults the two courts for making the ruling that President cannot initiate the initiative and the verdict on this issue was ambiguous.
Says the President did not initiate the amendment process and was not the promoter too.
12:49: She poses the question - Who was the promoter if the President was the initiator?
Says they are Dennis Waweru and MP Junet Mohamed.
12:45: Says the President is constitutionally right to enjoy political rights.
"The President in his official capacity can initiate and promote changes to Constitution like any other Kenyan."
12:35: "It is the 1 million numbers that make the BBI popular. The popular initiative is about numbers and not the person initiating it." She has so far differed with Chief Justice Martha Koome, Justices William Ouko and Issac Lenaola on this issue.
The other trio argued that popular initiative was about the person initiating, the President in this case, rather than the numbers.
12:33: Says the two courts overreached and amended the Constitution on their own.
12:31: The two courts' rulings are open to interpretation. The words initiate, initiator and private citizen do not appear in the Constitution.
12:30: The learned judges of appeal at the Court of Appeal agreed with the High Court that the initiative was supposed to be citizen-driven.
12:28: Says she is disturbed by how the superior courts - High Court and Court of Appeal framed this issue.
Justice Njoki Ndung'u on Basic Structure Doctrine
12:24: Notes that in some jurisdictions, basic structure doctrine has been applied and in others, rejected.
Says that the proprietors of the BBI intended to entrench and protect this doctrine.
"It is wrong to effect this doctrine in Kenya," Njoki Ndung'u says, adds no law provides for the same.
Justice Isaac Lenaola on Multiple Referendum Questions
12:21: This question was immature to be handled at the Court of Appeal.
Justice Isaac Lenaola on IEBC Quorum
12:20: This IEBC was properly constituted.
Justice Isaac Lenaola on Public Participation
12:17: Public participation was sufficient, save from the second schedule which the Court of Appeal interrupted.
Justice Isaac Lenaola on Immunity of the President
12:16: President cannot be sued in a personal capacity. One can only sue the Attorney General.
Justice Isaac Lenaola on whether the 2nd schedule on the amendment bill was constitutional.
12:14: He says it was unconstitutional.
Justice Isaac Lenaola on Whether the President Can Initiate a Popular Initiative
12:12: The President cannot initiate the process by collecting bills and popularising then retiring to allow others to take charge.
"President cannot initiate constitutional amendments but Uhuru was not the promoter."
“The President should not initiate a popular Constitution amendment process. But in this case the President did not”
Says they are Dennis Waweru and MP Junet Mohamed.
Justice Isaac Lenaola on Basic Structure Doctrine
12:11: In summary, the basic structure doctrine does not apply in Kenya.
It only applies when a new Constitution is being made and not during amendment.
Justice William Ouko on Multiple Referendum Questions
12:03: "Court of Appeal erred in failing to clarify this immature issue," Ouko deduces.
Justice William Ouko on IEBC Quorum
12:02: Says IEBC was constitutionally mandated to conduct all its business.
12:01: "IEBC whether it has the maximum of 7 or 3 is mandated to conduct its roles," Justice Ouko says, disagrees with the Court of Appeal.
12:00: He is deducing whether IEBC met its quorum at the time it was dealing with the BBI Bill.
Justice William Ouko on Public Participation
11:56 am: It is the duty of promoters to garner signatures, 1 million as required.
He overturns the Court of Appeal ruling on public participation.
Justice William Ouko on Immunity of the President
11:54:The Court of Appeal thus errored on ruling that the President can be sued - Ouko says he enjoys immunity.
11:54: There is the option of impeachment too which is clearly stipulated.
11:53: The President's actions in the office are actions of the state, thus one can institute a suit against the Attorney General, or sue him after he leaves office.
11:52: Determination of the Court of Appeal on this matter, ruling that the President can be sued, gives the Supreme Court for the first time opportunity to give its say on the matter.
Justice William Ouko on whether the 2nd schedule on the amendment bill was constitutional.
11:50: Agrees with the Court of Appeal and High Court that the 2nd schedule on the amendment bill was constitutional. The law clearly spells out delimitation/constituency creation by IEBC.
Justice William Ouko on Whether the President Can Initiate a Popular Initiative
11:45: The President spearheaded the process from its inception and only passed the baton to the BBI chairpersons. He agrees with the Court of Appeal and the High Court.
Thus he is ineligible to initiate the process and cannot act as a citizen and at the same time claim to exact state authority.
11:44: Thus there was evidence of state involvement in the initiative.
11:43: The BBI secretariat that championed BBI emerged out of the blues, but Honourable David Waweru signed an affidavit saying that the BBI was created to unite the nation.
11:42: The word promoters in Constitution is used in Article 157 to describe the common mwananchi.
11:30: The term popular initiative has not been described in the Constitution, but in common terms can only be amended by the people.
Justice William Ouko on Basic Structure Doctrine
11:34: Basic structure does not apply to the Constitution of Kenya, Ouko differs with the Court of Appeal.
11:28: In interpreting the Constitution, courts must give directives and not leave more questions than answers, thus they should ensure their rulings are unambiguous - not open to more than one interpretation.
11:24: Parliament cannot be used to amend the Constitution.
11:22: Just like India and Germany where the basic structure was applied, it was based on their own history.
"Constitution of a country is based on their own unique distinction."
11:16: Recalls how President Mwai Kibaki signed the 2010 Constitution, thus changing Kenyas' laws.
CJ Koome on Multiple Referendum Questions
11:08: CJ Koome gives her verdict on whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.
The ruling that they should be submitted as separate questions was not right for determination.
Issue of contention 7 out of 7.
CJ Koome on IEBC Quorum
11:07: Says that IEBC was legally and constitutionally composed to handle the BBI bill with its three commissioners at that time.
11:05: CJ Koome notes that IEBC was sued on the quorum of the electoral commission at the time it was dealing with the BBI Bill.
Whether the 3 commissioners were mandated to handle the bill.
CJ Koome on Public Participation
11:00: Says there was reasonable public participation in the BBI initiative.
10:56: A promoter conducts public participation before giving IEBC mandate to verify signatures is now deemed unreasonable as IEBC can reject the initiative like in the Punguza Mizigo - CJ Koome says.
10:52: CJ Koome now rules on public participation and IEBC collection of signatures.
It is my finding that there was no obligation on IEBC to ensure that promoters of the popular initiative met the threshold.
CJ Koome on Immunity of the President
10:50: CJ Koome says that the Constitution clearly defines how to hold the President accountable and directs on how to initiate an impeachment too.
Anybody, however, can initiate a proceeding against the President by suing the Attorney General who represents the President.
The implications of the ruling by the two courts that the President is not above the law are far-reaching and need a clear understanding from this court.
This interpretation concludes
10:48: The President acts on whether his power exists or not and any proceedings against him will fall under the immunity provision and there is none stating that he has to seek consultation from the Judiciary.
10:47: The President not only enjoys functional immunity but also sovereign immunity as head of state and a single representative of the sovereignty of the republic.
10:46: CJ koome says that the President enjoys immunity as a person and as a President too.
10:34: CJ Koome's deduction on Presidential immunity and whether the President can be sued.
CJ Koome on whether the 2nd schedule on the amendment bill was constitutional.
The constitutional threshold was not met on the second schedule therefore it was unconstitutional.
BBI's new 70 Constituencies were unconstitutional
10:37: CJ Koome now gives her deduction on 2nd schedule on the amendment bill was constitutional. The third contentious issue among seven.
CJ Koome on Whether the President Can Initiate a Popular Initiative
10:36: The President was involved in the amendment bill and thus I agree with the two courts.
"The President cannot be blamed for this because it is the promoters who took over the Amendment Bill and used the popular initiative route to pursue the amendment process."
10:31: Article 38 (1) gives a citizen the right to make a political choice and must fall under the category of a citizen. State organs or institutions cannot be citizens.
President acting as a private citizen does not relate with him acting as a President under a state organ.
10:28: CJ Koome endorses the finding by both Courts that the President cannot endorse the initiative.
10:23: Direct democracy can only be effected by the people and not their representatives - CJ Koome says on the President initiating a popular initiative.
"It is a preserve of the citizens who in Kenya are known as the Wanjikus."
10:20: CJ Koome now gives a verdict on the second issue of contention - whether the President can initiate a popular initiative.
CJ Koome on Basic Structure Doctrine
10:19: Any amendment to the Constitution must be carried out to strict conformity of the basic structure doctrine- CJ Koome rules, differs with Court of Appeal and High Court.
10:13: Court of Appeal failed to analyse Chapter 16 of the Constitution and make its own analysis. It failed to appreciate Kenyans were aware of the idea around the basic structure doctrine.
10:07: The two courts below amended the Constitution through the judgement of the court - CJ Koome on basic structure doctrine.
"Court of Appeal erred in introducing the fourth pathway in amending the Constitution.”
10:00: CJ Koome says a crisis can be created by the Judiciary on the amendment of the Constitution by giving power to the Legislature to amend the Constitution rather than the people.
"The next question that follows is whether it was necessary for the two superior courts to adopt the basic structure doctrine and therefore devise a fourth-way path to amend the constitution outside the three-way path."
"We judges should be vigil and not introduce pathways to amend the Constitution," CJ Koome.
9:56: The two courts, the Court of Appeal and the High Court did not go into a detailed analysis and did not give the shortcomings of Chapter 16.
"Kenyans do not want to shift from hyper amendment to ultra rigidity and desired a balance between rigidity and amendment through an enhanced and inclusive participatory process through a referendum."
9:54: The CJ notes that constitutional amendments must be ratified by the people through a referendum.
9:47: The CJ says that analysing the rationale behind Chapter 16 of the Constitution is the first step towards understanding the basic structure doctrine.
"Before declaring the applicability of the basic structure doctrine in Kenya's constitution, a court is obligated to take into account our constitutional history."
9:41: Every court in the world analyses basic structure on its own as per the Constitution and history of their countries - CJ Koome says.
"The idea of Basic Structure has not yet been adopted universally," CJ Koome dissects.
9:36: Basic structure - CJ Koome notes that the High Court and the Court of Appeal noted that there are certain fundamental features in the Constitution that are not amendable on a case to case basis.
Four sequential steps have to be followed according to the junior courts -civic education, public participation, constituent assembly debate, and a referendum.
9:30: Seven issues for contention filed at the Supreme Court will be ruled on today. These include, whether the President can be sued, whether the basic doctrine applies in Kenya, the quorum of the IEBC, the constitutional rights of the President as a citizen, and whether a popular initiative, can be initiated by the President.
The other is whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.
9:27: "The High Court identified issues for determination and came up with the judgement which was appealed at the Court of Appeal," CJ reads. Notes that 8 suits against BBI were filed at the High Court.
9:24: Martha Koome recalls the handshake that led to the formation of the BBI. Notes that President Uhuru Kenyatta and Azimio La Umoja Presidential aspirant, Raila Odinga announced that they were keen on uniting the nation.
9:20: The CJ recalls three recent amendment attempts via popular initiatives - the Constitution of Kenya Amendment Bill 2015, Punguza Mizigo and the BBI initiative. Notes that the first two failed.
9:16: CJ Koome says that the importance of the 2010 Constitution cannot be underestimated and that many people sacrificed to draft and pass it.
"The history behind the making of the Constitution cannot be buried and forgotten ... Courts are required to uphold the constitution by breathing life to all the provisions whilst promoting the dreams and aspirations of the Kenyan people."
9:07: CJ Koome is the first to read her verdict.
9:06: CJ Koome notes that there are over 5,000 pages and the judges will read their final verdict only.
9:00: CJ Martha Koome opens proceedings, says that all judges will read their verdicts.
BBI appeal hearing at the Supreme Court ended on January 20 after it was heard for three days, from January 18. The case was filed at the apex court after the Court of Appeal upheld the High Court ruling which invalidated the initiative.
