The Supreme Court has upheld the decision of the Court of Appeal that invalidated the Constitutional (Amendment) Bill 2020.
The Supreme Court, in a majority judgment on Thursday, affirmed that the process to amend the constitution through the Building Bridges Initiative (BBI) was illegal.
The ruling was delivered by a seven-judge bench comprising Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Justices William Ouko, Isaac Lenaola, Mohammed Ibrahim, Smokin Wanjala and Njoki Ndung’u.
The judges found, that the purported popular initiative was initiated by President Uhuru Kenyatta and not the common mwananchi ‘wanjiku’. The court held that a popular initiative is a preserve of the people and not their representatives. Justices Lenaola and Ndung’u dissented.
BBI is a product of the March 9, 2018, political truce between President Kenyatta and opposition leader Raila Odinga, popularly known as the handshake.
BBI sought, among others, to expand the Executive and introduce the office of the Prime Minister and two deputies as part of what the handshake duo termed as efforts to solve historical injustices bedevilling the country.
In the Thursday judgment, the Supreme Court also gave its pronouncement on five other matters before the court.
The court overturned a ruling by the Court of Appeal that the Basic Structure Doctrine applies in Kenya with Justice Lenaola dissenting. This now paves way for the amendment of certain clauses of the Constitution that the lower court ruled were ‘unamendable’.
On the decision of the Court of Appeal that the President can be sued in his personal capacity under his tenure, the Supreme Court ruled that the judges contradicted the constitutional provisions on presidential immunity.
According to the Supreme Court judges, civil proceedings can’t be instituted against a sitting President.
The court further held that the Independent Electoral and Boundaries Commission (IEBC) was properly constituted when it handled the BBI Bill.
BBI was declared unconstitutional, null and void by the Court of Appeal in August last year.
The petition was filed by Attorney General Kihara Kariuki and IEBC with the BBI Secretariat listed as an interested party.