The BBI Decision: Seven-judge bench to deliver much anticipated verdict

After 4 days of hearing the appellants and the respondents in the case against the Building Bridges Initiative-led referendum push, the judges took 7 weeks to deliberate on the petitions made by both sides, in order to make their decision known on August 20th.

The 7 judges of the Court of Appeal, 4 men and 3 women led by presiding Judge Daniel Musinga will render their verdict after determining the petitions made by the 5 appellants in the case, they are the president of Kenya, the Attorney General, the IEBC, ODM leader Raila Odinga and the BBI secretariat.

They will also consider the prayers by the respondents who filed their grounds for affirmation.

This together with a comprehensive look at the orders given by the 5-judge bench at the High Court in their verdict.

So, just what will the court of appeal judges be making a decision on?

First it is whether the doctrine of basic structure is applicable in Kenya. The High Court found that it does and that it limits the power to amend the basic structure of the constitution and the eternity clauses

They will also have to make a finding on whether the president can be sued.

The High Court determined that civil proceedings can be instituted against the president.

Another key determination from the Court of Appeal today will be what constitutes a popular initiative and whether the president can initiate a constitutional amendment process through a popular initiative as outlined in article 257 of the constitution.

The 7-judge appeal bench will then have to make a decision whether to uphold the High Court order or overturn their order that stated that the BBI steering committee has no legal capacity to initiate any action towards amending the constitution, that the president contravened chapter 6 of the constitution.

More importantly, will they uphold the high court’s order that the entire process to amend the constitution was unconstitutional?

They will also have to decide on whether the electoral management body is properly constituted to collect, verify signatures, whether there was a legal framework at the time to govern the same.

One of the other sticky issues at the heart of this case is the fate of the proposed new 70 constituencies.

The High Court ordered that the allocation of the new electoral units and the attempt to direct the IEBC on its function of delimitation of constituencies was unconstitutional.

The judges will also consider the submissions made over 4 days by both the appellants and the respondents in this case. here is a sample of the appellants arguments

So how will the 7-judge bench make a decision?

Of the 23 orders given by the High Court in their judgment, there are 18 that would directly determine if we have a referendum and how that would be conducted.

The appellate judges can decide to either uphold some or all of the orders of the High Court, or overturn some or all of the same.

A decision is binding if made by a majority of the judges on this bench. Having 7 judges, it will need 4 or more judges coming to a similar verdict.

There is no chance of deadlock due to the odd number.

Now, the judgment can be either unanimous, as we saw at the High Court with all the 5 Judges led by Justice Joel Ngugi arriving at a similar decision, or there could be one or more dissenting judgments, up to 3.

There is precedence to this. Remember the Supreme Court presidential election petition of 2017 saw dissenting judgments from 2 of the judges

Whichever way they decide Friday, the judgment will be key in determining the constitutional and political outlook for the country in the near future