NAIROBI, Kenya Jul 1 – The Third-way Alliance Party contends that President Uhuru Kenyatta ought to have stepped aside if he wanted to initiate the proposed changes to the Constitution through the Building Bridges Initiative (BBI).
Lawyer Elias Mutuma, told the Appeals Court that the President had already set a precedent for such an action in 2014 when he temporarily appointed his Deputy William Ruto as acting President so that he can travel to The Hague to respond to the International Criminal Court as an individual but not the country’s president to attend the status conference in his Crimes Against Humanity case which was later terminated for lack of evidence.
“In 2014, our President did the right thing… So if the President wants to initiate such a process as a citizen he must do exactly the same thing. He must come out in the open and announce to us that, this is not the President doing this, it is me as a citizen,” he told the seven-judge Court of Appeal bench hearing the challenge to a High Court ruling that scuttled the constitutional amendment.
Mutuma maintained that President Kenyatta cannot spearhead the amendment of the Constitution while he is still a state officer who has taken an oath to protect and preserve the national document.
He noted that former MP Dennis Waweru and Suna East MP Junet Mohammed were sued in their capacity as officials of BBI’s National Secretariat and they never signed a single notice of protest to that description, hereby confirming that they are not the promoters.
“If we are to go with the assertions of the appellants, this was drafted by Dennis Waweru and Junet Mohammed so it shouldn’t be a problem for the people to enact a law. Subsequently, we will show that the Executive was involved all along,” he said.
In his submissions before the Appeals Court, Mutuma further claimed the assertion by Junet and Waweru that they were the promoters of the BBI contradicted their position before the High Court.
The Third-way Alliance Party lawyer ran into headwinds after Justices Daniel Musinga, Rose Nambuye and Patrick Kiage questioned him on the legislation-making procedure after he claimed that the enactment of a proposal comes first and not at the tail-end.
Mutuma dismissed claims by the appellants that they jumped the gun in rushing to the High Court to challenge the Building Bridges Initiative process when the proposal was still being handled by the County Assemblies.
“We brought a real issue touching on a dispute or a threat to the Constitution and you ‘My Lord/My Lady’ (s) have authority to defend the Constitution unlike us who only have an obligation,” Mutuma explained.
He asserted that the action by the BBI team was aimed at repealing the 2010 Constitution and not amending it.
“If the nature of the changes being brought bring about in-concealable conflict between what we have and what we are bringing in then we are repealing and not amending. Our Constitution does not provide for a repeal,” he explained.