This archive report was first published on 20 August 2021.
Notable Quotes From BBI Judgment ¶
On August 20, 2021, a seven-judge bench of the Court of Appeal delivered the Building Bridges Initiative judgment, sparking a mix of reactions from Kenyans with notable quotes from the judges.
Justice Francis Tuiyot emphasized that the making and unmaking of the Constitution is a preserve for the people exercising primary constituent power and should not be codified. He also noted that the IEBC was not quorate when it embarked on the business of verifying BBI signatures, which could lead to the public losing confidence in the Commission's ability and neutrality.
Justice Fatuma Sichale highlighted that there are explicit provisions in the 2010 Constitution providing for amendment, and therefore, there is no reason to look outside the Constitution. She also stated that the framers of the Constitution balanced between flexibility and rigidity, and if the amendment of the Constitution is rigid, it may lead to revolutions.
Justice Kairu Gatembu disagreed with the High Court's ruling that the President did not initiate the BBI process as a private citizen and was acting in his official capacity. He also noted that IEBC violated its own rules on the verification of signatures of voters who endorsed the BBI Bill, denying Kenyans adequate access and time to confirm whether their details and signatures had been erroneously used.
Justice Patrick Kiage emphasized that the Constitution is not a result of an immaculate conception and that those who swear by the Constitution must be prepared to live by it. He also stated that new wine cannot be stored in old wineskins and that the people of Kenya were ready to prevent the Constitution from mutilation.
Justice Hannah Okwengu noted that the people can exercise their sovereignty in constitutional making through secondary constituent power by either delegating to Parliament or reserving to themselves the power to amend the Constitution. She also stated that Parliament has no power to amend or change the basic structure of the Constitution.
Justice Roselyn Nambuye disagreed with the High Court's ruling that the BBI task force and steering committee are illegal entities. She also noted that the President cannot be faulted for initiating the BBI process and that the task force was established to advise the President.
Justice Daniel Masinga emphasized that the President appointing a Judiciary Ombudsman would entrench the Executive in the JSC and by extension the Judiciary, increasing membership of executive appointees to 5 and potentially leading to a clawback on the independence of the Judiciary.
