Supreme Court final orders on BBI as it declares it unconstitutional

The Supreme Court on Thursday made any attempts to resuscitate the BBI which was twice declared dead by the High Court and Court of Appeal impossible.

After nearly one year of trying to salvage the fate of the BBI which suffered the first blow at the High Court in May 2021 followed by another setback at the Court of Appeal in August last year, the Supreme Court finally pronounced itself on the controversial bill spearheaded by President Uhuru Kenyatta and ODM leader Raila Odinga.

Seven issues had been framed for determination by the highest court on the land following petitions filed by proponents of the BBI. Key among the contentious issues is whether or not the President can initiate Constitutional changes through a popular initiative.

On this issue, all the Supreme Court judges apart from Lady Justice Njoki Ndung'u ruled that the President cannot initiate constitutional changes through popular initiative.

The apex court judges also ruled that the second schedule in the BBI on the creation of 70 new constituencies was unconstitutional due to lack of public participation.

Chief Justice Martha Koome, who read out the final orders of the Supreme Court, noted that out of the 7 contentious issues appeal would only be allowed on issues 1, 4, 5, 6, 7, and would be disallowed on issues 2 & 3.

Here are the final orders of the court, with the judgement set to be delivered on Tuesday,  April 5, 2022.

Supreme Court final orders on BBI:

1. The basic structure doctrine is not applicable in Kenya
(Justice Ibrahim dissenting)

2. The President cannot initiate Constitutional changes through popular initiative
(Justice Njoki Ndung'u dissenting)

b). The President initiated the amendment process
(Justices Njoki Ndung'u and Lenaola dissenting)

3. The Second Schedule of the BBI is unconstitutional for lack of public participation
(Justice Njoki Ndung'u concurring)

4. Civil proceedings cannot be instituted in any court against the President
(Unanimous)

5. No obligation on IEBC to ensure that promoters of BBI bill complied with requirements for public participation (Unanimous)

b) There was public participation in regards to BBI
(Justices Mwilu,Ibrahim & Wanjala dissenting)

 6. IEBC had the requisite composition and quorum to verify signatures.
(Justice Ibrahim dissenting)

7. Issue of referendum questions was not ripe for determination.
(Justice Njoki concurs)