Chief Justice Martha Koome judgement in summary

The Supreme Court of Kenya is Thursday expected to deliver the Building Bridges Initiative (BBI).

Last year, the High Court and the Court of Appeal shot down the Bill saying the entire BBI process was unconstitutional.

The seven key issues being used in determining the matter include;

i) Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;

ii) Whether the President can initiate changes/amendments to the Constitution; and whether a_ constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the constitution;

iii, Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;

iv, whether civil proceedings can be instituted against the president or a person performing the functions of the office of the president during his/her tenure of office with regard to anything done or done contrary to the Constitution;

v, The place of public participation under Article 10 vis-avis the role of IEBC under Article 257 (4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;

vi, Interpretation of Articles 88 & 250 of the Constitution with respect to composition and quorum of IEBC; and

vii) Whether interpretation of Article 258 (10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.

While reading her ruling Thursday, Chief Justice Martha Koome concluded that;

1. Basic structure not applicable in Kenya
2. President not permitted to initiate constitutional amendment through popular initiative
3. Second schedule on creation of 70 new Constituencies was unconstitutional
4. Civil proceedings cannot be instituted against the President during his tenure
5. There was public participation on the BBI bill, save for schedule 2 of the bill
6. IEBC was legally constituted with 3 Commissioners
7. Multiple referendum questions not ripe for determination

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