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Senior politicians, lawyers react to BBI judgement

ANC leader Musalia Mudavadi at the launch of Patrick Ole Ntutu's gubernatorial campaign in Narok. [Photo by DPPS]  

A judgement by the Supreme Court of Kenya on Thursday, March 31, on the Building Bridges Initiative (BBI), has elicited mixed reactions among Kenyans.

The verdict by a seven-judge bench has put a final stop to the constitutional change push that was being supported by President Uhuru Kenyatta and ODM leader Raila Odinga.

A majority of the judges – Chief Justice Martha Koome, Justices William Ouko, Isaac Lenaola, Smokin Wanjala, Mohamed Ibrahim and Philomena Mwilu – ruled that the push was not procedural.

The judges added that the popular initiative route is reserved for Wanjiku (citizens), and not holders of the offices in the Executive or the Legislature.

Amani National Congress (ANC) Party leader Musalia Mudavadi welcomed the decision by the apex court, saying the judgement has restored faith in the Judiciary.

“I congratulate the Supreme Court judges for their bold decision, which essentially puts a stop to the BBI reggae. Kenya is indeed fortunate to have a strong and independent Judiciary to which the people can always turn to when those in power become outrageously impertinent,” Mudavadi said in a tweet.

Wiper Party leader Kalonzo Musyoka, in a brief tweet, said: “We respect the Supreme Court of Kenya.”

Kikuyu Member of Parliament Kimani Ichung’wah said: “Unconstitutional, null and void. With all the resources, energy, bravado and impunity exhibited by the BBI brothers? Truly earth is hard."

Former Law Society of Kenya (LSK) president Nelson Havi welcomed the decision, saying: “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’.”

Another lawyer, Steve Ogolla, said: “Ultimately, the BBI Bill fails not because the Constitution has a basic structure, but because the popular initiative was initiated by the president, and for want of public participation.”

Another lawyer, Donald Kipkorir, said: “BBI Constitution fails on only one ground: [it was] initiated by the president… It, therefore, means that between now and August, fresh promoters can dust up the Bill, remove the part relating to constituencies only and run with it successfully on all the other proposals.”

Prof. Makau Mutua said: “The Supreme Court has spoken.”

BBI Ruling in summary:

-Six out of seven judges ruled that the basic structure doctrine does not apply in Kenya. Justice Mohamed Ibrahim dissented.

-Six out of seven judges ruled that President Uhuru Kenyatta cannot use popular initiative route to change the Constitution. Justice Njoki Ndung’u dissented.

-Five judges found that President Kenyatta directly initiated amendments to the Constitution. Justices Isaac Lenaola and Njoki Ndung’u dissented.

-On whether the constitutional amendment Bill was unconstitutional, Justices Isaac Lenaola and Njoki Ndung’u dissented.

-All the seven judges (unanimously) held that a sitting president cannot be subjected to civil litigation.

-All the seven judges also held that there was no obligation on the IEBC to ensure that promoters of the constitutional amendments conducted adequate public participation before escalating the Bill to the county and national assemblies.

-All except Justice Mohamed Ibrahim ruled that the IEBC, with three commissioners, had the requisite quorum to verify one million BBI signatures.

-Each party should bear own suit costs.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021