For the better part of last year, legality of the Building Bridges Initiative (BBI) dominated political discourse as the Handshake partners, President Uhuru Kenyatta and ODM leader Raila Odinga, made a compelling case to review the 2010 Constitution.

The two leaders had earlier unveiled the document, which they explained would form the basis to address Kenya’s perennial socio-political challenges that had seen the country getting increasingly polarised, especially during election time.

The document had been put together by a taskforce following analysis of views presented by various people and interest groups, whose ultimate aim was to address regional integration, cohesion, shared prosperity and the centrality of the economy.

But as the BBI process appeared to be headed to a referendum where Kenyans would vote to amend at least 70 pieces of legislation, the High Court made a ruling that would change the course of the initiative. On May 13, 2021, a five-judge bench was to determine 17 questions raised by a group of activists on the constitutionality of the BBI process in David Ndii and Others versus the Attorney General.

The group had sought an injunction against the electoral agency from proceeding with an initiative which was headed to a referendum. In a unanimous decision, the bench declared the BBI process unconstitutional and stopped the elections body from conducting a referendum.

The Court of Appeal was to uphold the High Court ruling four months later. Proponents then sought intervention of the country’s highest court.

Yesterday’s ruling by the Supreme Court judges, who put a permanent stop on Uhuru and Raila’s spirited attempt to review the Constitution must be viewed from the wider prism of the court’s pronouncements.

It was arguably a well-reasoned judgment that seemed to exercise fairness among the parties concerned, so much so that the proponents, even after losing the overall case, did not leave empty-handed. 

For instance, the judges ruled that the President cannot be sued for his actions while in office and also declared that the Constitution can be amended as long as the right procedure is followed. By doing so, they threw out the basic structure argument that seeks to protect the supreme law from any changes.

Also, the judges spared the electoral body from any legal action after declaring it was legally constituted at the time it verified the BBI signatures.

It, therefore, makes sense for Kenyans to view the whole BBI process and judgment as a lesson for a better future for all of us.