August 20, 2021 - 5 minutes read

Court of Appeal stops Reggae

By Francis Monyango

Today a seven-member Court of Appeal bench dismissed the BBI appeal. The seven judges are Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott.

The judges took turns to read their judgments which were upholding the High Court’s decision. However, Lady Justice Fatuma Sichale dissented on most of the issues. 

Lady Justice Fatuma Sichale held that: 

  • Civil proceedings were initiated against the President without giving him the right to be heard.
  • IEBC was properly constituted during BBI signatures verification.
  • IEBC had the right legal framework to oversee a Referendum.
  • The President cannot initiate Constitutional change through popular initiative.
  • IEBC has no role in increasing or decreasing the number of constituencies. It wasn’t unconstitutional for BBI to propose an increase in the number of constituencies without involving IEBC.

Justice Francis Tuiyott held that:

  • IEBC was improperly constituted during BBI signatures verification.

Justice Gatembu Kairu held that:

  • The President cannot initiate Constitutional change through popular initiative. The President does not fall under the category of ‘general public’.
  • Doctrine of basic structure: amenable, but within the law.
  • All Constitutional provisions are amendable, without changing the Constitution in its entirety.
  • Verification of signatures was not properly conducted by IEBC. The notice period given to the public to verify the list of signatures and names was not sufficient.
  • The IEBC had some elements of statutory framework to conduct a Referendum.
  • Absence of a legal framework does not mean that IEBC should be stopped from conducting its legal duties.
  • IEBC was not properly constituted when verifying signatures and conducting its mandate in regard to BBI. IEBC Act places quorum at five.
  • Was the President served with a petition in which he was named as respondent, and was he given a notice of hearing? No. The Attorney-General could not represent the President, and therefore, the President should have been personally served.
  • President can be sued in his personal capacity during his tenure.

Justice Patrick Kiage held that

  • Does basic structure doctrine apply in Kenya? Yes. The Constitution contains a core of implicitly unamendable principles that give it its identity. Pakistan, Bangladesh, Argentina all have embraced basic structure doctrine, which has now spread across the world. ‘Basic structure doctrine is legitimate and sound. Every house must have some structure’.
  • People were not mere observers in the making of the 2010 Constitution.
  • Amendments proposed in BBI were ‘so far-reaching in character, scope and content; they were effectively dismembering the Constitution, blasting a huge hole in it and essentially creating a new Constitutional order.
  • Referendum could not be held unless the process leading to it, including civic education, public participation, collection of views and Assembly debate, was observed. ‘Referendum procedure can be made of no effect by deficit of prior civic education and public participation’.
  • Popular initiative is citizen-conceived and driven. It must be initiated by the ‘common mwananchi’, not the President. The President could use the Parliamentary initiative through his political party.
  • Popular initiative route was not available to the President.
  • Public participation wasn’t adequately conducted, though the signatures collected were lawfully gathered. County Assemblies did not involve resident-citizens in their counties. Some Assemblies ‘passed the Bill in a matter of days’ without involving the citizens.
  • High Court judges condemned the President unheard, as he wasn’t served with a notice of hearing.
  • The President can be sued in his personal capacity; he doesn’t enjoy absolute immunity. He may be sued outside his Constitutional duties.
  • Referendum in context of proposed Constitutional amendment by popular initiative must be governed by specific properly thought-out legislation.
  • IEBC lacked legal framework to verify BBI signatures. It also lacked quorum. IEBC quorum must be five. Such a ‘vital’ role [of overseeing a Referendum] requires full IEBC composition.

Justice Roselyn Nembuye held that:

  • Basic structure of the Constitution: ‘does not exist’.
  • BBI’s proposal to increase number of constituencies from 290 to 360: ‘violates procedures of delimitation of electoral units and usurps IEBC’s mandate’.
  • President is not immune to litigation in personal capacity.

Justice Daniel Musinga held that 

  • There’s no contestation that Kenya’s Constitution has a basic structure. What is in contention is what constitutes a basic structure.
  • Rigorous Constitutional change procedure similar to that used to adopt the 2010 Constitution must have been observed.
  • President was initiator of the BBI Constitutional change Bill.
  • BBI Secretariat was the promoter of the BBI.
  • BBI Steering Committee has no Constitutional mandate to initiate changes through the popular initiative route.
  • Public participation was not conducted appropriately.
  • President cannot initiate changes to the Constitution through popular initiative.
  • BBI proponents overstepped their mandate by suggesting an increase in the number of constituencies by 70 without involving the IEBC.

The Aftermath

ODM leader Right Honourable Raila Odinga had earlier in the week said that he will not appeal the Court of Appeal decision in the event it is not favourable. Speaking on Radio Nam Lolwe, Raila said his focus is on the 2022 General Election and he will revisit the Building Bridges Initiative (BBI) after Kenyans go to the ballot. On a tweet on Friday evening, Raila said 

“It is likely that today’s Court of Appeal ruling is not the end of the conversation and the parties involved will each make their own decisions on how to proceed from the decision that has been delivered today. But we feel that we have to move on.” 

Hon Waiguru, Governor of Kirinyaga County tweeted “Kenya will go on. BBI was well intended but we must respect the constitutional authority of the courts and find other legitimate means to achieve Kenya’s unity and prosperity. And for some of us, it’s time for serious introspection on the political way forward.”

Former Vice President Stephen Kalonzo Musyoka issued a statement: “on days liek today, we must all be reminded of how far we have come as a nation. That we are people enagaging in healthy discourse to make our country better and that our institutions can facilitate this as we move towards a greater democratic society.” He urged the country to respect the rule of law and the decision of the Court of Appeal. In his final words, “There is no loser in the process. A stronger democracy, a greater Kenya.”

Former Head of EACC, PLO Lumumba tweeted, “I salute the Majority in the Kenyan Court of Appeal for affirming without equivocation that when egotism and megalomania mount a Trojan Horse and masquerade as patriotism they will be handed a jurisprudential coup de gracè.”

Makueni Senator Mutula Kilonzo and Nairobi Senator Johnson Sakaja in a joint statement suggesting that it is time for a Parliamentary discussion on the issues raised in the rejected Building Bridges Popular Initiative. They urge their fellow MPs to pass BBI through the parliamentary route. We wait to see what the rest of Parliament thinks and sentiments expressed on the floor of the House.

Man of Faith

Hon. Ruto responded to the judgement in prayer: “GOD, our heavenly FATHER has come THROUGH for Kenya & STOPPED the COALITION the known, the mighty, & the powerful from destroying our CONSTITUTION. Our God, help the ALLIANCE of the unknown, the jobless, the Hustlers & Struggling farmers to now ENGINEER our ECONOMY from BOTTOM UP. 

Road Ahead

At this point in time, all roads lead to the 2022 polls. We await to see how parliament will respond to the call to initiate constitutional reform once more. We expect campaigns to pick up:

  • Following the High Court decision this week in LSK v AG and Inspector General of National Police Service, where Justice Mrima  declared the ban issued by the National Security Council with regards to in person gatherings unconstitutional and unlawful. 
  • Coupled with the “Overwhelming” support for rule of law evidenced in the responses of various leaders to the decision of the Court of Appeal today.
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