Kenya's Supreme Court declares BBI unconstitutional

Thursday March 31 2022

Chief Justice Martha Koome (C) flanked by Dep CJ- Philomena Mwilu (3L) Judge Smokin Wanjala (2L), Judge Isaac Lenaola (L), Judge Mohamed Ibrahim (3R), Judge Njoki Ndungu (2R) and Judge William Ouko (R) are seen during a session at the Supreme Court in Nairobi on March 31, 2022. AFP PHOTO


The Supreme Court on Thursday stopped President Uhuru Kenyatta's divisive bid to make sweeping constitutional changes through the Building Bridges Initiative (BBI), which opponents say was an attempt to widen his powers.

His estranged deputy and presidential candidate William Ruto has charged the changes would have led to an all-powerful presidency, while Mr Kenyatta argued the proposal would promote power-sharing among competing ethnic groups.

In a majority judgment, the Supreme Court, whose ruling is final, upheld a finding by the lower courts that Mr Kenyatta initiated the changes through a constitutional provision exclusively reserved for ordinary citizens.

The judges ruled that the President was the promoter of the initiative and that the Constitution does not grant him the powers to amend it through a popular initiative.

Six of the seven members of the court said it was wrong for the President to initiate BBI.

“He cannot run with the hare and hunt with the hounds,” said William Ouko, one of the judges.


“The President as a matter of fact commenced and spearheaded the process from its inception and only passed on the baton to the two co-chairpersons when it was too late in the day and beyond recall.”

Last year, the High Court and the Court of Appeal struck down the proposed constitutional amendments, prompting the government to appeal.

If the BBI amendments had succeeded, they would have led to the creation of 70 new parliamentary constituencies and establish several powerful new posts such as those of a prime minister, two deputies and an official leader of the parliamentary opposition.

The President and Dr Ruto have clashed publicly over the proposals.

Dr Ruto is running for the presidency in the August 9 elections, but Mr Kenyatta is backing his former political foe and veteran opposition leader Raila Odinga, who favours the amendments.

Justice Njoki Ndung’u, in a dissenting opinion, argued there was nothing wrong in Mr Kenyatta initiating the process of amending the law while Isaac Lenaola said there was no evidence the president started the BBI move.

Political rights

“I have no hesitation in holding that the President cannot initiate a popular initiative by collecting one million signatures, crafting an amendment Bill and then retiring to await the same Bill to ascent to it as President. But in this case, he did not,” Justice Isaac Lenaola said.

According to Justice Ndung’u, the fact that Mr Kenyatta is the President does not take away his political rights.

She said sovereign power may be exercised directly or through an elected representative and that the President is an elective representative of the people.

“It is the numbers that count. It is the numbers that make the initiative popular.

“It is primarily the numbers the promoters must attain, and not who the promoter is, that matter,” the judge said, adding that the President bears an elevated position nonetheless.

On the proposed creation of the 70 constituencies, the court in a majority decision said the process of coming up with the constituencies was not subjected to public participation, making it illegal.

“There was no evidence of deliberations or public participation on the change of the Bill to add the Second Schedule,” Justice Martha Koome said.

In a win for Mr Kenyatta and the Attorney-General, the judges led by Chief Justice Koome agreed that the President or any person performing the functions of his office cannot be sued during his tenure.