New administration under Samia Suluhu gives hope after 5 years of hopelessness

The president of the Court now in session. Issues to be decided

Relevance of the basic structure
Who were promoters of the BBI
Did IEBC had the quorum to perform the functions it performed
Whether the president of Kenya can promote constitutional reforms
Civil proceedings can be reinstituted against the president of Kenya
Whether plaintiffs served President of Kenya with their petition
BBI did not suffice the expectation of Kenyans
Amicus curia could be admitted in litigation of this nature etc

Basic structure is in the constitution Kenya the dispute is what constitutes it

Article 1 (1) all sovereign power is to be exercised by the people of Kenya through representation of the Parliament

Judiciary ombudsman is to be appointed to oversee the Judiciary that it conducts in transparency


That proposal in the BBI is an encroachment of the independence of the Judiciary


The proposed amendment who is a Presidential appointee aims to remove judges or discipline judges encroaching the constitutional powers of the Judiciary service commission

The values and aspirations of Kenyans well captured in the constitution was to have a strong independent Judiciary free from intimidation of the executive


That aspirations was compromised by the provisions in the BBI

The rule of law was under attack when the executive appointed ombudsman assumes powers of the Judicial service commission by investigating judges and punishes them

If this provision is sustained judges will be reluctant to deliver rulings which go against the executive

The creations of prime minister, and deputies who will be members of the Parliament violate the spirit of the constitution which separate the powers of the executive and Parliament

The BBI provisions of adding more constituencies encroaches the constitutional authority of the IEBC contrary to the clear values, aspirations and the spirit of the constitution

The basic structure is applicable in Kenya and reforms must be exercised by only the people of Kenya not necessarily through promulgation of a new constitution but after thorough education

The BBI was the presidential initiative not a citizen initiative

Legality of the BBI steering Committee and its report.

It was not a popular initiative process which is an interactive dialogue process which cannot be said in this case.

Under Article 257, BBI was an elitist process and therefore failed to satisfy the stringent requirements stated in this Article.

National language was Kiswahili but the report offended this requirement and displaying it in computer clearly alienated majority in transparent manner.

Proper participation was before signature collection not thereafter.

Some of the amendments were done after signature collection and the signatories were oblivious of those new developments when signing the BBI.

Some of the changes were designed to appease the electorate to approve the BBI without proper certification of the whole bill

Constituency assemblies did not follow the law when they rushed under 90 days was fatal and hence constitution

Public participation must be done without coercion violating Article 10 of the constitution.

President cannot initiate a popular constitution reform under Kenyan constitution

Where the courts decision which declare laws unconstitutional such rulings become effective on the date of deliverance. So IEBC lacked jurisdiction to advance the BBI under Kenyan constitution

Our Take

The implications of this decision to the fate of the Tanzania proposed constitution are huge and detrimental to its legality under Tanzania constitution.

The Warioba commission was elitist and an executive initiative patently to promote interests of the executive but not the people of Tanzania

BBI drafted bill for referendum deprived the electorate to make proper each and every article and those questions under law must be approved by the Parliament matters which were violated in that Bill

Fundamental freedoms in the bill of rights.

Constitutional issues must be determined by High Court under Article 165 of the constitution so the said court properly exercised its jurisdiction