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Final Blow To Uhuru, Raila As Supreme Court Declares BBI Unconstitutional


The seven-judge bench of the Supreme Court has ruled that the Building Bridges Initiative was unconstitutional.

The bench based its ruling on seven issues raised in the appeal with only one judge dissenting.

Chief Justice Martha Koome in her ruling found the president to have violated the constitution by initiating the constitutional amendment through the popular initiative Building Bridges Initiative BBI.

In her ruling Koome pointed out that President Uhuru Kenyatta was involved directly in initiating the process immediately after his truce with ODM boss Raila Odinga thus contravening Article 257 of the constitution.

Koome stated that the constitutional amendment through popular initiative is strictly by citizens commonly referred to as Wanjiku.

 “The popular initiative is a preserve of the citizens of Kenya popularly known as the Wanjiku I therefore find that exclusion of the institution of presidency and other state institution from initiation of a process to amend the constitution through the popular route does not violate the political right protected under art 38/1 of the constitution,” Koome said.

She further indicated that the BBI Bill inclusion of the new 70 constituencies was also unconstitutional and that the mandate was a preserve of Independent Electoral and Boundaries Commission which is an independent body.


Koome on the other hand agreed that the IEBC was properly constituted at the time of verification of BBI signatures.

“IEBC cannot extend its power or include asserting whether a promoter or a popular initiator has complied with the public participation under the constitution Public participation must not be an illusion but a meaningful engagement…Quorum of the IEBC…….it did not reach the quorum of five but instead it was 2/5 ..IEBC is legally constituted when composed of the minimum number of 3 members. It was legally and constitutionally composed when it undertook the verification process under article 257 of the constitution,” Koome said

“The president did not initiate the amendment process and he was not the promoter of the popular initiative under article 25. There is a similar process before the two houses of parliament and there is no evidence that this process did not take place. That there was public participation at the county level and at the house of parliament,’’ Njoki Ndung’u said in her ruling.

Justice William Ouko further agreed with the two courts that president Uhuru Kenyatta initiated the BBI process and further controlled the whole process through the BBI secretariat that was led by Denis Waweru and Member of Parliament Junet Mohammed.

‘‘The president as a matter of fact spearheaded the process from its inception and only passed on the button to the two co-chairpersons. That he cannot act as an ordinary citizen because he is not and the same day claim to be exercising executive authority,’’ Justice Ouko ruled.