The Attorney-General Kihara Kariuki, the IEBC, Raila Odinga and the BBI Secretariat had filed an appeal at the apex court after the Court of Appeal threw out the BBI push.
Chief Justice Martha Koome who led a seven judge bench to deliver the judgement on Thursday said the 2010 Constitution has been “resilient” to survive 21 unsuccessful attempts at changing it. She said 19 of these attempts were through the Parliamentary initiative, while two were through the popular initiative push.
In a majority ruling the judges found that two of the popular intitiave attempts,was made by President Uhuru Kenyatta, who they ruled does not have the right to initiate constitutional changes through the popular initiative route.
Chief Justice Koome, Justices William Ouko, Isaac Lenaola, Smokin Wanjala, Mohamed Ibrahim in their judgement said the popular initiative route is reserved to the Wanjiku, and not representatives elected by the people.
“The popular initiative is supposed to be triggered from below; at the initiative of the citizenry, as opposed to representative institutions. Popular initiative is a means of direct democracy, and indeed, direct democracy can only be exercised by the people, and not their representative,” said the Chief Justice.
All the judges found that the basic structure of the Constitution does not apply in Kenya.
Justice Njoki Ndung’u, on this contentious issue, said: “The basic structure doctrine can only be deduced by our constitutional past. It is unnecessary to import basic structure doctrine to Kenya.”
Deputy Chief Justice Philomena Mwilu reiterated Ndung’u’s sentiments.
On his part, Justice Ouko termed the 2010 Constitution is “self-regulating”. “The limitations to its amendment must be sufficiently-specific and unambiguous,” he said.
The judges, all of them, also ruled that a sitting president cannot be sued.
Chief Justice Martha Koome said the lower courts’ erred in it's ruling that President Kenyatta could be prosecuted in civil disputes.
“The implication of this is far-reaching, and therefore calls for a very careful analysis and consideration by this court,” she said.
“The exercise of public power by the president can be challenged in a court of law by suing the Attorney-General through an action of Judicial Review or Constitutional petition,” she added.
On whether the proponents of the popular bill overstepped their mandate by fronting the creation of 70 new constituencies, the judges found that the IEBC’s role was overstepped by the proponents of the BBI.
“Directly allocating and apportioning constituencies usurps the mandate of IEBC, an independent constitutional Commission." said the CJ adding that “Delimitation of constituencies must be accompanied by a process that is fair and justice.”
On the issue on public participation the judges differed with a section of them ruling that there was proof of adequate participation with those dissenting arguing that public participation was only proved in some elements of the bill but it lacked on others.
On whether the electoral body had quoroum during verification of signatures, a majority of the judges ruled that the IEBC was properly constituted with 3 out of the 7 commissioners to oversee the exercise, however Justice Mohamed Ibrahim,differed.
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