CJ Koome reprimands Ahmednasir and Nelson Havi in BBI judgement

CJ Koome was speaking after the Supreme Court justices delivered their individual judgments on the legality of the Building Bridges Initiative Constitution (Amendment) Bill 2021.

She accused the two lawyers, alongside Esther Ang’awa of trying to influence the outcome of the appeal through social media.

“In the process of writing these judgments, the court observed with concern some commentary on social media by counsel, some of whom are appearing in this matter.

“The contents of those social media commentaries were in our view meant to influence, intimidate or scandalise the court. This unfortunate practice is emerging and unless it is checked, it will erode the confidence and dignity of the courts.

“It would also be termed as unprofessional conduct, especially by counsel appearing in this matter and even counsel who are not involved in this matter but know very well that they cannot comment on a matter that is pending judgement,” she said.

Chief Justice Martha Koome delivering judgement at the Supreme Court Pulse Live Kenya

CJ Koome went ahead to name Nelson Havi and Esther Ang'awa adding that it was improper for the lawyers to make their presentation before the courts and then take to social media to try and discredit the Judiciary.

“Equally culpable is the conduct of senior counsel Ahmednasir Abdullahi who took the lead role in disparaging and besmirching the court as evidence in his post on Twitter on February 8, 15 and even as late as yesterday,” she called out the constitutional lawyer.

The chief justice said that Ahmednasir’s conduct was not in line with the expectations of the rank of senior counsel.

Verdict on BBI appeal

CJ Koome said that after all the judges had delivered their individual verdicts, they would retreat to consolidate all their notes and deliver the final version on Tuesday, April 5, 2022.

Below are summaries of the judgements delivered by various judges of the supreme court.

Chief Justice and President of the Supreme Court Martha Koome (centre) and Deputy Chief Justice and Vice-President of the Supreme Court Philomena Mwilu (third left) with Supreme Court Judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Mohamed Ibrahim, Njoki Ndung’u and William Ouko at the Supreme Court Building in Nairobi. Jeff Angote | Nation Media Group Pulse Live Kenya

Justice Martha Koome

The Basic Structure Doctrine is not applicable in Kenya
President cannot initiate a constitutional amendment through popular initiative
BBI's new 70 Constituencies were unconstitutional
Civil proceedings cannot be instituted against the President during his tenure
There was public participation other than in 70 constituencies
IEBC was legally constituted with 3 commissioners
Nature of referendum questions was immature

Justice Ibrahim Mohammed

The Basic Structure doctrine is applicable in Kenya
The president cannot act as a promoter or initiator of a popular initiative
The proposal to create 70 constituencies is unconstitutional
No civil proceedings can be instituted against the president during his tenure
Public participation was not reasonable or meaningful by the time process was halted
IEBC did not have a quorum when it undertook verification of the signatures
The nature of referendum questions was not ripe for a dispute to be handled by the court

Justice Isaac Lenaola

Basic Structure doctrine: Not applicable to Kenyan Constitution
President cannot initiate a popular initiative, directly or indirectly
BBI's creation of 70 constituencies inconsistent with the Constitution
The President cannot be sued during his tenure
There was sufficient evidence that there was public participation other than on the matter of 70 constituencies
IEBC was properly constituted
Nature of referendum questions was premature

Justice Philomena Mwilu

The Constitution has a basic structure but the BBI Bill was unconstitutional
The president cannot initiate changes to the constitution
The proposal to create 70 constituencies is unconstitutional
President cannot be sued during his/her tenure
BBI Bill did not meet the test of meaningful public participation
IEBC was properly constituted; nothing was shown to the contrary
Nature of referendum questions was not ripe for a dispute to be handled by court

Justice Njoki Ndungu

The basic structure is not applicable in Kenya. There are no eternal clauses in the Constitution
President can initiate and promote a popular initiative
Addition of 70 constituencies unconstitutional
President is immune from civil court proceedings
There was public participation
IEBC had the necessary quorum
The issue of referendum questions was premature

Justice William Ouko

Basic Structure doctrine: Not applicable to Kenyan Constitution
President cannot initiate a popular initiative, directly or indirectly
BBI's creation of 70 constituencies inconsistent with the Constitution
The President cannot be sued during his tenure
There was sufficient evidence that there was public participation other than on 70 constituencies
IEBC was properly constituted
Nature of referendum questions was premature

Justice Smokin Wanjala

The Basic Structure doctrine is not applicable in Kenya
The President cannot initiate a popular initiative; President Kenyatta initiated BBI popular initiative process
The 70 constituencies in the BBI Bill are unconstitutional
The President cannot be sued privately while in office
No meaningful public participation was conducted by BBI promoters
IEBC had the requisite quorum
The issue of referendum questions is not ripe for determination