Chief Justice Martha Karambu Koome has agreed with two out of seven contentious issues raised in the Building Bridges Initiative (BBI) petition.
In her ruling, the Chief Justice agreed with the Court of Appeal and the High Court that the President cannot initiate constitutional reforms as long as he is the serving Head of state.
While noting the applicant's argument that the BBI was popularised by the secretariat, Koome ruled that there was evidence of President Uhuru Kenyatta's hands in the process.
She cited the launch of the BBI document which was a state function adding that President Kenyatta signed the document as the Head of State.
She also agreed with the lower courts on the Second Schedule of the BBI that proposed the creation of 70 new constituencies to raise the total number to 360 from the current 290. The Court of Appeal and the High Court had ruled that there was no public participation on this matter.
She, however, differed with the Court of Appeal and High Court on the immunity of the President. In her ruling, she argued that civil proceedings cannot be instituted against a sitting head of state.
The Chief Justice also noted that the lower courts erred in the determination of the application of the Basic Structure Doctrine, arguing that it is not applicable in the case of Kenya.
On the matter of Public Participation, the Chief Justice argued that this was met as the proposals in the BBI were approved by 45 of the 47 counties.
However, Koome issued an advisory to the National Assembly regarding the regulation of public participation.
She noted that there was no legal framework to guide how public participation should be conducted, asking lawmakers to draft relevant legislation.
She further ruled that the Independent Electoral and Boundaries Commission (IEBC) was properly constituted at the time of the BBI and did not make any wrong in verifying the signatures collected by the BBI secretariat.
On the multiple questions referendum, the Chief Justice ruled that it was immature to make such a determination since the referendum had not started.
