Why BBI is big test for apex court judges
It will be baptism by fire as Justice Martha Koome leads a seven-judge bench this morning, to make what could arguably be the most significant ruling by the Kenyan courts since the nullification of President Uhuru Kenyatta’s election victory in 2017.
Apart from deciding the fate of the Building Bridges Initiative (BBI), Koome’s team is also being looked upon to make precedent-setting rulings that would leave a landmark impact on the presidency.
Will the bench, comprising Justice Koome, her deputy Philemona Mwilu, Smokin Wanjala, Njoki Ndung’u, Ibrahim Mohamed, Isaac Lenaola, and William Ouko, wield the big stick and overturn earlier judgments by the High Court and Court of Appeal?
Or will the apex court uphold the judgments by the two courts and thereby see the official death and burial of BBI, and in essence kill President Kenyatta and his Handshake partner Raila Odinga’s pet project?
Judicial observers are of the view that the seven judges may deliver a “Solomonic” judgment by isolating good proposals in the BBI document for implementation while vetoing others.
The long legal process on BBI began on May 23, 2021, when a five-judge bench comprising Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita unanimously declared the Constitution of Kenya (Amendment) Bill, 2020, popularly known as BBI, unconstitutional in a ruling that left Uhuru and Raila baffled.
Soon after the High Court ruling on the proposed constitutional changes, the President, Raila and the BBI Secretariat, determined to see the reforms through, moved to the Court of Appeal, challenging the ruling they termed as “biased”.
However, in a judgment delivered on August 20, 2021, Appellate judges Fatuma Sichale, Roselyne Nambuye, Daniel Musinga, Hannah Okwengu, Francis Tuiyot, Patrick Kiage and Gatembu Kairu upheld the decision of the High Court and declared the three-year quest by the Handshake partners to amend the Constitution through the BBI unconstitutional.
The seven judges also issued a permanent injunction restraining the Independent Electoral and Boundaries Commission (IEBC) from processing the Bill or subjecting it to a referendum. The Bill had already been approved by Parliament.
The judges also upheld the High Court’s finding that the President has no authority to promote amendment of the Constitution through a popular initiative and that he can be sued with respect to his actions or omissions in the Constitution.
The two judgments have variously been compared to the 2017 Supreme Court ruling when a bench led by Koome’s predecessor, Chief Justice David Maraga, made an unprecedented move by nullifying Uhuru’s election victory.
Before the Maraga ruling, Kenyan courts had always been accused of lacking the nerve when dealing with rulings that may not go down well with the Executive.
Those opposed to BBI hailed the two rulings as progressive, pro-democracy and an indication that Kenya’s judicial system had come of age and freed itself from the firm grip of the Executive.
The matter was then progressed to the Supreme Court whose verdict this morning would not only have a direct bearing on the August 9 General Election, but also determine IEBC operations, the conduct of future presidents as well as dictate how amendments to the Constitution could be undertaken.
“There are certain issues that the Supreme Court must come out clearly to settle for posterity. The High Court and Court of Appeal made certain decisions that must be conclusively addressed,” says Senior Counsel Prof Tom Ojienda.
Prof Ojienda says that the Supreme Court must address the controversy created on whether the President can be sued in his personal capacity for any wrongs done or not done while in office.
“In essence, the Presidency has been denied the presidential immunity that the holder of the office enjoys. This is one key issue that the judge will have to address fully, otherwise, it leaves holders of the office vulnerable,” says Prof Ojienda.
The High Court and Appeal Court concurred that civil proceedings can be initiated against the President in his personal capacity, meaning he does not have pure immunity and has to be held fully responsible for all his actions while in office.
Still on the Presidency, all eyes are on the judges on how they will handle the burning issue of the constitutional rights of the President as a citizen, including his right to equal treatment under the law (Article 27), freedom of expression (Article 33) and freedom to make political choices (Article 38).
“Does the President lose these rights by dint of his election as such? Where is the boundary between President as the constitutional holder of the office and the President as an individual?” posed lawyer Gad Awuonda, one of the drafters of the 2010 Constitution.
The Koome-led team is also expected to settle the issue of President Kenyatta’s involvement in the BBI process by determining whether the he can initiate amendment of the Constitution through a popular initiative.
The High Court and appellate court ruled that the President has no power to initiate an amendment of the Constitution through the popular initiative.
Awuonda says the judges have the onerous task to determine the issue of public participation in the BBI Bill and the quorum of IEBC at the time it was dealing with the BBI Bill.
According to Awuonda, the bone of contention is that while the object of Article 250(1) of the Constitution sets the minimum number of commissioners of the IEBC at three, the IEBC Act places a minimum quorum at five commissioners.
“If the commission is considered legitimately constituted with three commissioners, the court will be expected to resolve the question whether an Act of Parliament can set a higher legitimacy threshold for an independent commission than that set by the Constitution,” he says.
Other issues that the apex court is expected to settle include the controversy on whether a referendum ballot paper involving multiple amendments should contain multiple questions or a single question.
Whereas the Court of Appeal ruled that a proposed referendum on multiple amendments to the Constitution can be submitted as a single question to voters, the High Court had earlier observed that the 74 clauses proposed for amendment in the BBI should have presented as separate referendum questions.
The judges will also have to deal with the question on whether the principle of Basic Structure applies in the Kenyan Constitution and whether the country’s Constitution can only be changed by following four sequential steps of civic education, public participation, constituent assembly debate, and a referendum.
Expectations are high from both the proponents and opponents of BBI with each side anticipating a positive result.
Proponents of BBI argue that if implemented, the proposals would lead to a reduction in post-election conflicts and their destabilising factors.
Both Uhuru and Raila argue that the BBI will help unify the country, and address several challenges that the country currently faces, including “youth unemployment, corruption and negative ethnicity.”