Leading lawyers in the country have expresses mixed reactions following the Supreme Court judgment that has declared BBI unconstitutional.
Taking to social media on Thursday, March 31, the lawyers had different opinions on the implication of the historic judgment delivered by the Martha Koome led bench.
The Supreme Court overturned five fundamental findings of the lower courts while upholding two findings which consequently meant the BBI initiative cannot proceed any farther.
Paul Mwangi, a leading constitutional lawyer welcomed the judgment, especially on the finding that the basic structure doctrine is not applicable in Kenya..
Mwangi, who is a legal advisor to the ODM leader Raila Odinga opines that the judgment makes it possible to amend the constitution in the future unlike the Court of Appeal finding which made it difficult to amend the constitution.
“The power to amend has been upheld. The process of making the bill has been upheld, save for the second schedule. Only the role of the President in promotion was faulted. It’s now up to the political leaders to decide whether or when to reload,” Mwangi said.
Former LSK chair Nelson Havi on his part was happy with the judgment irrespective of the finding on the basic structure doctrine by the judges.
According to the outspoken barrister, what is important is that BBI has been declared unconstitutional.
“Well, it took a determined cat to stop the noisy, noxious, nuisance that was the BBI Bill reggae. It matters not that the Supreme Court has held that the Basic Structure Doctrine is inapplicable in Kenya. In the end, all that matters is the pronouncement, It is null and void.” Havi noted.
Senior Councel Ahamednassir Abdullahi in general commended the judges for making a brave ruling.
“On the whole a good judgment by the Supreme Court on the BBI. CJ Koome and Ibrahim were outstanding in their reasoning. Smokin, Ouko, and Mwilu were good. Lenaola was disappointing. Njoki…Oh My God…painful to listen to!!!” Ahamedenassir wrote.
In their final judgment, the Supreme Court judges made the following orders:
- Basic Structure doctrine is not applicable in Kenya.
- President cannot initiate amendment through a popular Initiative.
- Creation of 70 constituencies is unconstitutional.
- Civil proceedings cannot be initiated against the president.
- There was inadequate public participation (on the Second Schedule).
- IEBC was quorate and competent to handle the BBI Bill.
- Issue of multiple questions was not ripe for determination.
- Each party to bear its own costs of suit.
