BBI: The seven key issues for determination by Supreme Court

• Jan 18, 2022

The Supreme Court judges will from today hear the appeal case on the Building Bridges Initiative (BBI).

The petition was filed after the High Court and the Court of Appeal shot down the Bill saying the entire BBI process was unconstitutional.

In a three-day sitting, the apex court will hear the appeals filed by Attorney General Kihara Kariuki, the Independent Electoral and Boundaries Commission (IEBC) and city lawyer Morara Omoke.

The court had given appellants and respondents ten days to file and serve written submissions including a list of authorities that will be cited.

The submissions were to be confined to seven key issues framed by the court that will be used in determining the matter.

They 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-a-vis 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.

The bench will include Chief Justice Martha Koome (above) as President of the Supreme Court.