On 20th August 2021, the Court of Appeal delivered its judgment on the Building Bridges Initiative. The court upheld an earlier decision by the high court to stop the broad constitutional changes proposed in the BBI.


Since the ruling, the country has been split. Some have called on us to allow the decision of the seven judges of appeal court be final.
Some of those calling for an end have done so in the belief that we can visit these issues another day and possibly after the general election. But there are also self-serving calls, instigated by anti-BBI crusaders.



There are also those who believe, very strongly, that the BBI is pursuing a just cause, that its being resisted in the same way the push for return to multi-partysm and the struggle for a new constitution, among other landmark changes have been resisted in the past and that the promoters should proceed to the highest court in the land for a final word.


As promoters of the BBI Bill, we have weighed the options, suggestions and reasons since last Friday.


We have now come to the conclusion that there is need for this matter to proceed to the Supreme Court. The initiative was supported by over four million Kenyans.


Their overriding sentiment is that we must pursue this matter to the very end.
We therefore wish to inform the country that as a Secretariat, we shall be supporting the appeal of the Attorney General at the Supreme Court on the BBI.



We believe that the Supreme Court has a wider and more encompassing mandate when dealing with matters of great national interest than the High Court or the Court of Appeal.


Section 3 of the Supreme Court Act says that the objective of the Supreme Court is, among other obligations;


develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth;
enable important constitutional and other legal matters, including matters relating to the transition from the former to the present constitutional dispensation, to be determined having due regard to the circumstances, history and cultures of the people of Kenya.”



This very wide mandate in interpretation of our constitution is given to the Supreme Court judges because in times of national crisis as the one we are heading into now; they can innovate to steer the country towards unity and growth.



We believe that the two lower courts failed to appreciate the delicate balance needed in resolving an issue like the one before us and that only the Supreme Court judges have both the vocation and the mandate to do so.
We however take note that the Court of Appeal Judgment made some significant positive pronouncements on the BBI which represent important progress from the High Court ruling.



These include:
Affirming the legality of the BBI Taskforce and BBI Steering Committee.
Affirming that the President has powers to establish ad hoc Committees and bodies.
Affirming that the promoters of the BBI Bill were Hon Junet and Hon Dennis Waweru under Article 257 of the Constitution.


Affirming that the role of IEBC under Article 257 (4) is to verify that an initiative is supported by One Million Registered Voters and not to verify the authenticity of signatures.


Affirming that IEBC has mechanisms to verify an initiative by using its register of voters and biometrics as it did in regard to the BBI Bill;


Affirming that County Assemblies and Parliament cannot alter, vary, or change the contents of a Constitution Amendment Bill during their consideration;



Affirming that Referendum questions are to be contained in one Bill as opposed to multiple questions.


We want to keep pushing because we are determined to ensure that some of the very novel proposals in the in the BBI are not lost, and if they have to be lost, it must be known that we made our best efforts to secure them.



There is the real possibility of a national crisis if some of the BBI provisions don’t become law.


For instance, BBI is intent on finally settling the gender question in Parliament. As we all know, Justice David Maraga, the immediate former Chief Justice, issued a ruling that Parliament is unconstitutionally constituted and will not be properly so, unless the gender equations are implemented.



There is no other likely way to resolve this matter. All previous attempts have failed. It is impossible to constitute a new Parliament without the solution to the gender equation.


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This needs urgent attention and the solution of BBI is the only viable solution in our view. We need the highest court in the land to pronounce itself on this matter.


This country needs to deal ruthlessly with the scourge of corruption. The public agrees that corruption is a threat to the existence and well-being of Kenya.


The BBI has recommended several innovative measures to deal with the menace including speedy prosecution and conclusion of corruption cases, stiffer penalties, aggressive recovery of stolen public resources.


We believe strongly that more resources need to be devolved to the counties all the way the wards. We want the Supreme Court to take a stand on these matters.


There is also the issue of inequality in Kenya which traces its origins to the social and economic policies of the colonial era and the immediate post-independence period. The policies we have pursued over the last fifty plus years have made Kenya many countries in one.


It is a fact that while a section of Kenyans has done extremely well, others have grown extremely poor over the same period.


It is a fact that the country has not generated sufficient jobs and people are getting very frustrated at the lack of sufficient opportunities and absence of social protection to the poor and vulnerable.


The BBI has some viable proposals on how to create an economy that works for every Kenyan, how to address taxation, how to strengthen agriculture, livestock and industrial sectors in rural areas to create jobs and eradicate poverty. We want the Supreme Court to pronounce itself on this matter.


This country has been consumed by election related violence since the return of multiparty politics in the 1990s. The period to and after elections have become civil wars in which the country loses property and innocent lives because of contest for power.


It is the intention of BBI to avert the election crisis as that witnessed in previous elections by reforming the governance structure. Again, there are no alternatives and we are about to conduct a general election. We want to hear from the Supreme Court on this matter.
There are many contradictions in both the High Court and Court of Appeal rulings that will create confusion and legal chaos if not settled with finality. The Attorney General will detail these in his appeal.
Kenyans deserve clarity on the Basic Structure Doctrine. We feel that as it is, the Judiciary has amended the Constitution of Kenya and written processes into it that Kenyans did not discuss or vote on. It has also literally, unilaterally and mischievously deleted Chapter 16 which allows an amendment to this Constitution by a popular initiative.
It is said that “Every great achievement was once considered impossible.” This is very true of this country.
Everything we enjoy today is a product of bitter and painful struggles. Multi party politics, the constitution of 2010, devolution; all these are products of painful struggles.
We are determined to soldier on. If the lessons of the past are to be our guide, the BBI too will come to be realized if we fight hard enough and we are determined to fight hard enough.
Hon. Junet Mohamed
Hon. Dennis Waweru

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