BBI’s journey to the Supreme Court was rocky from the start


Solicitor General Kennedy Ogeto (second from left) with a section of lawyers during the BBI decision at the Supreme Court in Nairobi on March 31, 2022. [David Njaaga,Standard]

All parties came out of the tent, either happy or discouraged.

Supporters and opponents of the Building Bridges initiative claimed victory and defeat in equal measure.

The arbiter, a bench of seven Supreme Court judges led by Chief Justice Martha Koome, dissected the seven questions.

One by one they decided, just as the lower courts did, and killed the Building Bridges initiative to amend the Constitution.

For BBI supporters, their patient wasn’t too desperate after all, as the court agreed on four issues and removed the one hurdle that made changing the Constitution nearly impossible.

With the basic structure doctrine out of the way, and being guided on what to do, they can reinvigorate themselves and start the process going again.

No one can stop reggae, Raila Odinga had said as he traveled the country to rally support for the BBI, a move sanctioned by President Uhuru Kenyatta.

However, the split over the BBI case continued in the Supreme Court. The same was true of the High Court and the Court of Appeal. In the high court, the verdict was unanimous.

Justices Joel Ngugi, Jairus Ngaah, Teresiah Matheka, George Odunga and Chacha Mwita ruled that the Building Bridges initiative was unconstitutional and that President Kenyatta had breached Chapter Six of the Constitution.

Nonetheless, the court was split on whether it was justified or had the authority to appoint the BBI task force.

Judge John Mativo had ruled the president was right, and the five-judge bench found he had violated Chapter Six of the Constitution.

Rationality tests

“The president cannot be said to have acted ultra vires the Constitution. He acted intra vires in taking steps to achieve this lofty constitutional requirement,” Judge Mativo said in a case filed by Thirdway Alliance challenging the formation of the BBI working group.

“The president’s decision satisfies both the proportionality and rationality tests which are fundamental requirements for the decision to pass the test of the principle of legality.”

Six issues were raised by David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei in the High Court.

However, it was not all bleak for the chairman and the BBI task force as Judge Jairus Ngaah dismissed a separate case brought by Kenyans living in the diaspora in December last year.

The representative of Kenyans in the Diaspora, James Gitau, lamented that they were not included in the BBI process.

After an almost chaotic presidential election in 2017, a historic handshake between Uhuru and Raila on March 9, 2018, gave birth to what has been touted as the bullet to kill perennial ethnic wars during the election.

The team collected the opinions of Kenyans from all walks of life and documented them in a recommendation sold as a cure for all the country’s social ills – negative ethnicity, political antagonism and corruption, among others.

However, the Court of Appeal dashed their hopes by upholding the High Court’s verdict.

Unlike the High Court, the CoA was divided on the eight issues raised.

The judges were unanimous on five points, including the fact that the High Court sentenced President Kenyatta without hearing him.

However, they could not agree on nine issues, including whether BBI was constitutional. Judge Fatuma Sichale found herself on the side of the minority.

President of the Court of Appeal Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu and Francis Tuiyott agreed with the majority of the issues raised by the Ndii team and upheld the judgment of the High Court.

During this time, the Supreme Court deliberated on seven questions.

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