Supreme Court Justice Njoki Ndung'u has ruled that no law limits the President of the Republic of Kenya from initiating a popular initiative.

On the issue of the second schedule on boundaries, she ruled that the lower courts lacked jurisdiction to determine the proposed additional constituencies. She wondered whether the Supreme Court itself has jurisdiction to address the question. 

She held that the Second Schedule proposing additional 70 constituencies was unconstitutional. On public participation, she held that there was public participation but said there should be a law on public participation.

On whether the president can be sued, she said civil proceedings do not lie against the president and that an aggrieved person should pursue Impeachment.

Below are highlights of Justice Ndung'u's judgment on the BBI:

I have perused properly and I cannot find a logical reason to rule out the president's involvement in the initiation of a popular initiative.

The constitution does not state who the promoters must be. The constitution is silent on this issue.

A president enjoys all constitutional rights and freedoms like any other Kenyan. A president does not lose his or her constitutional rights under  Article 38.

There is no law that limits the president from enjoying his political rights, especially that of campaigning for a political cause, which in my view, includes constitutional amendments. 

I fault the courts for making declarations of unconstitutionality without specifically itemizing the article of the constitution that was either denied or violated, infringed or threatened.  I find that the president was not the promoter of the popular initiative.

Does the basic doctrine structure apply to Kenya?

The basic structure is not applicable in Kenya. The Basic Structure Doctrine has only been accepted in a few countries.

Was the second schedule unconstitutional?

The second schedule to the Constitution Amendment Bill conflicts with the substantive provisions of Article 89 of the Constitution and is therefore unconstitutional.

Can the president be sued in his personal capacity?

It is my finding that the president in appointing the BBI task force was discharging his mandate in promoting and enhancing the unity of Kenya.

There was no basis for concluding that the president's actions contravened the constitution to deprive him of the immunity he enjoys.

Was there sufficient public participation?

The collection of signatures is not a constitutional process and the promoters are not under any obligation to conduct public participation prior to the collection of signatures.

I cannot concur with Nambuye's finding that there was a need to give the public reports in Kiswahili, braille sign language before the referendum. There is no evidence that public participation did not take place.

Did IEBC have a quorum to conduct its mandate?

The high court and Court of Appeal issued contradicting judgments.

It is my considered view that the trial courts need to follow the decision of other judges unless there are compelling reasons to depart from the same.

This is to ensure consistency, accuracy, predictability and sound judicial administration. The Star