NAIROBI, Kenya, Aug 20 – Appellate court judges Fatuma Sichale and Kairu Gatembu have upheld a finding by the Constitutional Court that the President cannot initiate constitutional reforms under a popular initiative.
Justice Sichale, who is among the seven judges of the Court of Appeal who heard the Building Bridges Initiative (BBI) appeal, argued that the President is not an ordinary citizen and therefore cannot initiate constitutional changes through a popular initiative.
“His Excellency the President cannot be a wanjiku. I agree with the High Court that the President cannot initiate changes through popular Initiative,” she stated.
Justice Kairu Gatembu also found that the president’s involvement in the BBI irregular, saying he could not have acted in his private capacity.
He therefore said the President and Executive cannot initiate amendments by popular initiative, on grounds that the route is a preserve of the general public.
“The president’s involvement in the BBI was not in his private capacity. It was also necessary for the public to be supplied with adequate copies of the Bill for their consumption before collection of their signatures,” stated Gatembu.
The question of whether the President can initiate a popular initiative was among the landmark aspects that the Constitutional Court declared the BBI process invalid in its May 14 judgment.
The respondents had argued that the President had an option of temporarily vacating power so as to pursue the constitutional amendments as a private citizen.
The court heard the President is a state officer, hence is involvement in initiating the process unlawful.
The appellants had argued that Suna East Member of Parliament Junet Mohamed and former Dagoretti South Member of Parliament initiated the amendment process.
The respondents however dismissed the claim, noting that the BBI steering committee was appointed by the President, citing a gazette notice.
The respondents also argued that the steering committee and the taskforce were answering to the President.
Sichale, in her judgment, also found that the President is not insulated from a civil case, if he does anything in his own personal capacity.
On the Independent Electoral and Boundaries Commission (IEBC), Justice Sichale differed with Justice Francis Tuiyott, saying the Commission did not require a quorum to validate signatures in support of a constitutional amendment process.
She further said that the proposal for creation of 70 new constituencies is within constitutional limits saying the IEBC’s is limited to delimitation of constituency boundaries.
