BBI Judgement
David Ndii & Others V. Attorney General & Others, also known as the BBI Judgement, was a landmark ruling made in the Kenya High Court on 13 May 2021, which issued an injunction on Kenya's Independent Electoral and Boundaries Commission from proceeding with President Uhuru Kenyatta's and retired Prime Minister Raila Odinga's Building Bridges Initiative. The five-judge bench was to determine seventeen questions raised on the petition against the BBI Process.
On 18 March 2018, President Uhuru Kenyatta and retired Prime Minister Raila Odinga had what is now referred to as the "handshake", an initiative which they termed as being "towards a united Kenya". Following this "handshake" with Mr. Odinga, the President appointed the Building Bridges to Unity Advisory Taskforce comprising 14 committee members and 2 joint secretaries through Gazette Notice No. 5154 of 24 May 2018.
In a unanimous decision, the bench, led by Justice Joel Ngugi, declared the process unconstitutional and prohibited the IEBC from conducting a referendum on the Constitution of Kenya Bill. The judges also ruled that the president had acted in excess of his powers by initiating the constitution amendment process through the Building Bridges Initiative. The judges described the BBI process as "a presidential initiative guised as a popular initiative", and allowing it to be sustained would amount to having the Head of State as promoter and referee of his own initiative. "In reality, BBI was the president's initiative which is contrary to article 257 of the Constitution. The task force that morphed to a steering committee was an unlawful and unconstitutional outfit. It was invalid from the beginning," said the judges. The court also held that a sitting president can be sued personally in civic proceedings if they act against the constitution for his actions or inaction. According to the court, President Uhuru Kenyatta should have entered into appearance in the petition because it was a civil case, instead of the Attorney General responding on his behalf.
Background
Mr. Uhuru Kenyatta and Mr. Raila Odinga had just come off a hard-fought and intensely contested presidential election in 2017 in which they were the main contenders. The first round of presidential elections was held on 8 August 2017 and was characterized by allegations of vote fraud leading to its overturning by the Supreme Court. The repeat elections were held on 25 October 2017 but Mr. Raila Odinga boycotted - citing lack of electoral reforms, handing the victory to the incumbent.The political climate remained charged with the opposition, led by Mr. Odinga, calling for a boycott of products and services from companies seen as beneficiaries of the marred electoral process. These boycotts and demonstrations, which could sometime turn violent, continued and culminated with a mock swearing in of Raila Odinga as the "Peoples President" on 30 January 2018. On 9 March 2018, President Uhuru and Mr. Raila Odinga brokered a deal to end the tension symbolized by a handshake outside Harambee House. During the launch of the BBI Report, Mr. Odinga revealed that they held a 19-hour talk with President Uhuru to deliberate on how to put an end to the tension. The president and Mr. Odinga had spent an hour alone at State House before they had "actual talk". They spent most of the night discussing the details of the agreement, inviting lawyers in the end to compile and draft the deal before the handshake was made public.
It is on these grounds that the President started an initiative which he described as being "towards a united Kenya." After the famous "handshake" with Mr. Odinga, the President appointed the Building Bridges Unity Advisory Taskforce comprising 14 committee members and 2 joint secretaries on 24 May 2018. The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building a lasting unity in the country.
The BBI Taskforce came up with an interim report in November 2019. On 3 January 2020, through Gazette Notice No. 264, the President appointed the Steering Committee on the Implementation of the Building Bridges comprising 14 members and 2 joint secretaries. The committee was led by Garissa County Senator, Senator Yusuf Haji. In November 2020, the Constitution of Kenya Bill, 2020 was introduced in parliament.
There was some controversy on how exactly the Report of the BBI Steering Committee, after it was handed over to the President, became the Constitution of Kenya Amendment Bill, 2020. Nonetheless, the BBI Secretariat submitted the signatures to the Independent Electoral and Boundaries Commission, for verification and submission to the County Assemblies and Parliament for approval.
Proceedings
This judgment arose from eight consolidated constitutional petitions which challenged, in some fashion the Building Bridges Initiative and the resulting Constitution Amendment Bill and its associated Popular Initiative. On 16 September 2020, economist Dr David Ndii, together with Jerotich Seii, James Ngondi, Wanjiru Gikonyo and Ikal Angelei moved to the High Court seeking determination of three key issues among them whether the basic structure of the constitution can be amended. Public defender Okiya Omtata was also among the petitioners.On 21 January 2021 the Kenya National Commission on Human Rights and four law professors were enjoined as amici curiae in Petition No. E282 of 2020. Seven of the eight petitions were consolidated on 21 January 2021 and the eighth petition-Petition No. E002 of 2021 was consolidated on 10 March 2021. Kituo Cha Sheria, a human rights NGO, was enjoined as an interested party in the same petition and Phylister Wakesho were enjoined as an interested party in Petition No. E400 of 2020. Petition No. E282 of 2020 was designated as the lead file. In February 2021, the High Court issued conservatory orders to the IEBC from facilitating a referendum. The Consolidated Petitions proceeded for hearing from 17 March 2021 to 19 March 2021 via video conference. The counsel for the petitioners included Law Society of Kenya president; Nelson Havi, LSK Upcountry Representative; Esther Ang'awa, Open Society Justice Initiative director; Waikwa Wanyoike, advocate of the High Court; Sing'Oei Korir.
The High Court was set to give a ruling on the petitioners case on 13 May 2021. Earlier that day, Kenyan MP Moses Kuria admitted in an interview with BBC to taking $1,000 parliamentary bribe to vote for the constitutional amendment bill known as the Building Bridges Initiative. Hon. Kuria alleged that the bribery happened in parliament. "It is not unusual for members to get this kind of an inducement", Hon. Kuria said, adding he would return the payment. The National Assembly had voted on 6 May 2021 to pass the Constitution of Kenya Bill, 2021; with 235 MPs voting yes, against the 83 votes for no and 2 abstained votes on the second reading. Majority leader Amos Kimunya denied that any bribery took place in parliament. Speaker of the National Assembly, Justine Muturi, suspended Gatundu South Constituency Member of Parliament, Moses Kuria, and Kiharu Constituency Member of Parliament, Ndidi Nyoro, to four consecutive parliament sittings for their claims. The Kenyan Senate had voted for the bill on 11 May 2021; with 51 voting yes, 12 voted no and 1 abstained.
Petitioners argument
The petitioners' lead argument was that the legal and judicial doctrines and theory of the basic structure of a constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution and the implied limitations of the amendment power in the constitution are applicable in Kenya to substantively limit the ability to amend the Constitution under Articles 255-257 of the Constitution. The petitioners cited with approval works by Prof. Richard Albert especially his seminal book, Constitutional Amendments: Making, Breaking and Changing Constitutions. The petitioners further argued that it is the role of Parliament to protect the Constitution against tainted amendment bills and that the court has the role to declare a constitutional amendment unconstitutional in the event Parliament fails in its role.They relied on various treatises and written works in constitutional law and social contract. The petitioners also cited at length the work of Prof Ben. Nwabueze. The primary cases they cited included Njoya and 5 Others Vs Attorney General & Others for establishing the juridical status of the doctrine of the Constituent Power in Kenya. They also heavily relied on Kesavananda Bharati v State of Kerala & Another 4 SCC 225 for establishing the Basic Structure Doctrine and applying it to the Indian context.
Respondents argument
The 1st respondent, the Honorable Attorney General of Kenya opposed the petition vide their grounds of opposition dated 18 January 2021. The Honorable Attorney General opposed the petition on two broad grounds: First, he argued that the doctrine of basic structure and the corollary doctrines of constitutional unamendability and eternity clauses which the petitioners invoked are inapplicable in Kenya. The Attorney General asserted that the petitioners had not made out a case for the application of the doctrine of basic structure and the corollary doctrines of constitutional unamendability and eternity clauses. The Honorable Attorney General argued that the petitioner's argument failed to consider "the unique cultural, historical developed Constitutional norms and national identity of the Kenyan Constitution."Second, the Honorable Attorney General argued that the issues raised in the case are not justiciable. He contended that the Petitioners' case was speculative to the extent that the Petitioners presumed the contents of future amendments to the Constitution, without specifying the specific proposed amendments they objected to and to the extent that the Petitioners merely based their arguments on previous failed attempts at amending the Constitution. The Attorney General associated himself with the submissions of the Building Bridges to a United Kenya Taskforce National Secretariat on the issue of the Basic Structure Doctrine, to wit, that the same is not applicable in Kenya. They relied on the principle set out in the Indian cases of AK Gopalan vs the State SCR 88,120 A Sc. 27 and Central Province Case1959 FC R 18 AFC, which encouraged the application of the ut res magis valeat quam pareat doctrine
The Speaker of the National Assembly also argued that the Constitution of Kenya Amendment Bill was under consideration before Parliament and that, therefore, the Court lacked jurisdiction to intervene in an active Parliamentary process.