The Supreme Court has just delivered its ruling on the Building Bridges Initiative (BBI) case. The important issues delineated by the court were whether the basic structure doctrine was applicable in Kenya, whether the President initiated the BBI popular initiative, whether the proposal for the creation of the 70 constituencies was constitutional, whether the president can be sued in his personal capacity while in office, whether there was sufficient public participation, whether the Independent Electoral and Boundary Commission (IEBC) had a requisite quorum to verify signatures and whether the referendum question was ripe for determination.
The Supreme Court decided as follows:
1. The basic structure doctrine is not applicable in Kenya.
2. The President initiated the BBI popular initiative.
3. The proposal for the creation of the 70 constituencies was unconstitutional.
4. The President cannot be sued in his/her personal capacity while in office.
5. There was no sufficient public participation.
6. IEBC had the requisite quorum.
7. The issue on referendum questions is not ripe for determination.
Our comments on the three issues that are of importance in our view are as follows:
The ruling was quite sound. The basic structure doctrine is not supported anywhere in the Constitution of Kenya and the Supreme Court has reiterated that doctrines cannot override the Constitution of Kenya.
It is clear that the President initiated the BBI popular initiative. We think that the intention of the drafters was that the popular initiative for Constitutional amendment should be initiated by non-Governmental citizens.
The practice of couching suits as suits against the President has been stopped in its tracks. Article 143 (2) of the Constitution states quite clearly that “civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.” Any attempt to defeat this position is judicial craft and activism and the Supreme Court has correctly nipped this in the bud. Recent trends in which suits against the President appear to have been allowed are dangerous trends that would allow the judiciary to indirectly exercise executive functions. In the words of the US Supreme Court in Mississippi vs. Johnson 71 U.S. 475, “An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as 'an absurd and excessive extravagance'.”
The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2022/04/The-Hon-Attorney-General-and-ors.-vs.-David-Ndii-and-ors.pdf