The Supreme Court of Kenya (SCoK) Wednesday declared the Constitution of Kenya (Amendment) Bill, 2020, popularly known as the Building Bridges Initiative (BBI), unconstitutional. Rendered by the highest court in the land, the decision puts an end to a cascade of litigation that originated in the high court last year.
The bill proposing an expansion of executive power was first challenged before the high court where it was declared unconstitutional by a 5-judge bench, issuing an injunction against the electoral body from facilitating any referendum on it. The court’s main rationale hinged on the “basic structure doctrine”, which it stated applies in Kenya’s constitutional framework, thus preventing an alteration of the constitution’s basic structure. This promoted an appeal to the Court of Appeal (CoA) where a similar verdict was rendered, upholding the high court’s judgment.
The SCoK, while upholding the CoA’s decision, differed from it markedly in its position on the basic structure doctrine. The majority of the bench stated that the Constitution’s framework under chapter 16 already provides a sufficient bulwark against arbitrary amendments hence it would be nugatory to import the doctrine’s application to Kenya. The SCoK further differed with the appellate court on the four sequential steps of amendment highlighted by it, affirming that they could only apply in constitutional making and not in an amendment of the same.
The SCoK however concurred overwhelmingly with the CoA on the president’s power to initiate a popular initiative. Forming the core of the court’s rationale, the SCoK argued that a popular initiative could only be instigated by the constituent power (the people) and not the president. Therefore, the president’s active role in the entire process rendered it irreparably flawed. The court however maintained that the president enjoys immunity from civil prosecution during his tenure. The second schedule of the bill was further invalidated for usurping the powers of the electoral and boundary delimitation body.
The judgment has effectively put an end to the bill and the highly publicized referendum that it heralded. It also comes at a crucial time as the country is set for a decisive general election in August.