Notable Quotes From BBI Judgment

  • The Building Bridges Initiative judgment delivered by a seven-judge bench of the Court of Appeal attracted attention of Kenyans with notable quotes from the judges eliciting mixed reactions from across the country.

    Here are some of the notable quotes as compiled to you by

    Justice Francis Tuiyot

    • Making and unmaking of the Constitution is a preserve for we the people exercising primary constituent power and should not be codified.
    • Statute fixes the composition of IEBC to 7 and a quorum of 5 which has not been challenged.
    • IEBC was not quorate when it embarked on the business of verifying BBI signatures. The Commission needed to be in the right quorum. A drastically reduced membership could lead to the public losing confidence in the ability and neutrality of the Commission.
    • Making and unmaking of the Constitution is a preserve for we the people exercising primary constituent power and should not be codified.
    • An amendment to transfer judicial authority from the judiciary and independent tribunals to the executive is to unmake the constitution.
    Justice Fatuma Sichale reads her judgement at the Court of Appeal on Friday, August 20, 2021

    Justice Fatuma Sichale

    • There are explicit provisions in the 2010 constitution providing for amendment and therefore there is no reason to look outside the constitution.
    • The framers of the Constitution balanced between the flexibility and rigidity of the Constitution. If the amendment of the Constitution is rigid, it may lead to revolutions.
    • It is not good to elevate Judges to demi-gods. Judges, just like parliament, cannot assume supremacy over the people who are sovereign.
    • The President cannot be a Wanjiku and therefore cannot initiate the process of amending the Constitution through a popular initiative.

    Justice Kairu Gatembu

    • The president did not initiate the said process as a private citizen and was acting in his official capacity.
    • IEBC violated its own rules on the verification of signatures of voters who endorsed the BBI Bill. The Commission denied Kenyans adequate access and time to confirm whether their details and signatures had been erroneously used to endorse the Bill. 
    • I’m in agreement with the High Court that there is a legal requirement under article 10 of the constitution for voters to be supplied with adequate information to make informed decisions. There is no evidence that was done in this case.
    • IEBC Commissioners lacked Quorum to conduct a Popular Initiative
    • some of the arguments had the air of the “surreal” around it, and left him wondering whether we have “facts” and “alternative facts.”

    Justice Patrick Kiage 

    • The Constitution is not a result of an immaculate conception
    • Those who swear by the Constitution must be prepared to live by it..
    • New wine cannot be stored in old wineskin.
    • The people of Kenya were ready to prevent the constitution from mutilation, the power is original and inherent in the sovereign of the people.
    • BBI was a government project. It was gazetted by the government, the committee appointed by the president, and the report was even received in a state lodge.
    • Prominent personalities close to the president decided to change the constitution -It is not a popular initiative.
    • People are not voting machines and commodities for sale.
    • The President is not above the law. He must be subordinate to the constitution.

    Justice Hannah Okwengu

    • In my view, 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.
    • Parliament has no power to amend or change the basic structure of the Constitution.
    • The popular initiative must be initiated by a voter as opposed to elected representatives.
    • There was no evidence presented in court to show that there was public participation in the BBI process.
    • The process began with a handshake between the President and Raila then the appointment of taskforce and standing committee. The appointment were signed by the head of public service thus proving that is was done in his capacity of president!
    • BBI Steering Committee failed to involve members of the public effectively. I thereby uphold the learned judges finding that there was no meaningful public participation.
    • We judges have also risen to the occasion to protect the Constitution from unconstitutional amendments. The constitution has won.

    Justice Roselyn Nambuye

    • BBI was an Executive-driven and not a people-driven initiative.
    • I disagree with the High Court that the BBI task force and steering committee are illegal entities.
    • The President cannot be faulted for initiating the BBI process.
    • The task force was established to advise the President.
    • The President acted within his mandate.
    • The President should have engaged the government machinery or party to drive the recommendations of the task force forward through the parliamentary initiative. 

    Justice Daniel Masinga

    • President appointing Judiciary Ombudsman entrenches the Executive in the JSC and by extension the Judiciary. If it were to go through, it would increase membership of executive appointees to 5. It would be a clawback on the independence the judiciary.
    • A constitutional amendment bill that seeks to fundamentally alter certain constitutional pillars like the concept of separation of powers and independence of judiciary is not an ordinary amendment, it amounts to dismemberment of Constitution.
    • The creation of 70 new constituencies was a classic case of gerrymandering.
    Court of Appeal President Justice Daniel Musinga at the Milimani Law Court delivering the judgment on the BBI Appeal on Friday, August 20, 2021
    Court of Appeal President Justice Daniel Musinga at the Milimani Law Court delivering the judgment on the BBI Appeal on Friday, August 20, 2021


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