Blow to Uhuru, Raila as Supreme Court Rules on BBI

Chief Justice Martha  Koome reading her ruling on the BBI Appeal at the Supreme Court on March 31, 2022.
Chief Justice Martha Koome reading her ruling on the BBI Appeal at the Supreme Court on March 31, 2022.
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Judiciary

The Supreme Court has pronounced itself on the Building Bridges Initiative (BBI). The country's highest court ruled that the BBI did not follow the requisite steps, therefore, failed to meet some basic constitutional requirements.

The seven-Judge bench of the Supreme Court on Thursday, March 31, saw a majority of the Judges agree on five out of the seven issues raised by the petitioners.

In the more than half-a-day ruling, the Judges - in most cases - differed with the Court of Appeal and the High Court on a number of issues.

Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises on Thursday, March 31, 2022
Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises.
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Judiciary

All Judges, apart from Justice Ibrahim Mohammed, agreed that the Basic Structure Doctrine is not applicable in Kenya.

The Judges, apart from Justice Njoki Ndung'u, agreed that the President cannot initiate constitutional reforms in his capacity as the Head of State.

All the Judges, save for Njoki Ndung'u, agreed that the Second Schedule of the Building Bridges Initiative (BBI) was unconstitutional.

The Supreme Court ruled that the issue of creating new constituencies must undergo meaningful public participation. This was not the case in the BBI matter.

The Supreme Court Judges, save for Justice Ibrahim Mohammed, agreed that the Independent Boundaries and Electoral Commission (IEBC) was properly constituted and was rightful to undertake the signatures verification.

The Judges unanimously agreed that the President cannot be sued during his tenure in office. The Head of State can, however, be sued before the commencement of a term or after his term ends.

Three judges, justices Ndung'u, Mwilu and Wanjala, dissented on the issue of public participation, arguing that the BBI process lacked an inclusive participatory process. 

All judges save for Justice Ndung'u concurred that the matter on multiple referendum questions is still immature and not ripe for discussion in any court. 

The ruling was delivered by Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko. 

Azimio La Umoja presidential aspirant Raila Odinga (left) and President Uhuru Kenyatta (right) hold copies of the Building Bridges Initiative (BBI).
Azimio La Umoja presidential aspirant Raila Odinga (left) and President Uhuru Kenyatta (right) hold copies of the Building Bridges Initiative (BBI).
PSCU