Supreme Court judge Smokin Wanjala yesterday said that the basic structure doctrine is a school of thought that should not be in the arena of courts to determine.
While dismissing a claim by Building Bridges Initiative (BBI) opponents that the doctrine applies in Kenya, Justice Wanjala said the issue should not have formed a discourse for judges to settle.
The judge said the petitioners, who included economist David Ndii, presented the High Court with a theoretical construct that the court elevated to an issue of determination.
“After soul searching and serious thought, I have come to the conclusion that what we are faced with as the basic structure doctrine is no such doctrine; instead it is what I consider as a school of thought,” said Justice Wanjala.
He said that the opinions cited from both Kenya and abroad on the issue, despite being tantalising menus of ideas, the result was that the petitioners ought to have raised real issues that were in violation instead of abstracts.
Justice Wanjala also affirmed the Court of Appeal’s finding that the president cannot initiate a popular initiative drive.
The judge said that although the law prohibits the president from initiating the exercise, there were traces of him in the BBI process.
Justice Wanjala pointed to the gazettement of the BBI task force, and the President and former Prime Minister Raila Odinga spearheading the exercise. This included the appointment of the BBI Steering Committee.
“Considering all the steps taken, I have come to a conclusion. I find it difficult to distance the president from the involvement and initiation of the popular initiative,” Justice Wanjala ruled, citing Articles 255 and 277 of the Constitution.
The judge, however, reversed the Court of Appeal’s finding that the president can be sued in civil court for his actions or inactions while in office.
Court of Appeal judges Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott said that after the High Court found that Attorney General Kihara Kariuki could not represent Uhuru, they ought to have ascertained he was served with court documents.
But Justice Sichale said that at no point did the High Court show a return of service on Uhuru. She said the email through which the president is said to have been served seemed not to be a personal address.
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“Denial of the right to be heard renders the entire judgement null and void. It is wrong for the High Court to have proceeded and thereafter made adverse findings without ascertaining that he was served with the hearing notice,” she ruled.
Justice Wanjala said that although BBI opponents argued that Uhuru could be sued when he was not acting in his capacity as president, he found it difficult to understand how the High Court concluded that he can be sued.