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CJ Koome reprimands Ahmednasir and Nelson Havi in BBI judgement

Summary of the judgments delivered by all Supreme Court judges in BBI constitution case

Chief Justice Martha Koome reprimands lawyers Ahmednasir Abdullahi and Nelson Havi

Chief Justice Martha Koome reprimanded lawyers Ahmednasir Abdullahi and former LSK President Nelson Havi for using social media to attack the Judiciary and Kenya's Supreme Court.

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.

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.

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.

Justice Martha Koome

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

Justice Ibrahim Mohammed

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

Justice Isaac Lenaola

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

Justice Philomena Mwilu

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

Justice Njoki Ndungu

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

Justice William Ouko

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

Justice Smokin Wanjala

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

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