NAIROBI, Kenya, Jan 19 – Activists who mounted a successful case against the Building Bridges Initiative (BBI) constitutional review process at the Constitutional Court and Court of Appeal have urged Supreme Court justices not to succumb to threats from the Executive while determining the appeal.
The activists through lawyer Nelson Havi pleaded with the seven-judge bench headed by Chief Justice Martha Koome to be firm and uphold the Court of Appeal ruling that deemed the BBI process unconstitutional null and void.
The activists include economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei.
“You are better off dying standing than living kneeling, do not be forced to kneel to the caprice and the oppression of those who find the Constitution as an inconvenience,” Havi said.
He submitted that the basic structure doctrine is applicable in Kenya and that any alteration to the Constitution would constitute a violation of the document.
“A Constitution is supposed to be a permanent charter which is to endure for ages to come and not to be likely altered to meet the temporary expediency of party politics,” he said citing the writings of Professor Ben Nwabueze.
The former Law Society President of Kenya noted that the President had no role either in the popular initiative or in the parliamentary initiative by way of initiation.
He said any changes can only be proposed through the primary constituent power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate and ultimately a referendum.
Havi accused the BBI proponents — President Uhuru Kenyatta and former Prime Minister Raila Odinga — of trying to usurp the will of the people notably by trying to illegally change the country’s governing system.
“The nature of Executive in Kenya is pure presidential and the BBI Bill sought to create a hybrid, presidential, and a parliamentary system where we have the President and a Prime Minister. That was a fundamental change and it amounted to an alteration of the system of government which the people of Kenya had said will govern them,” he said.
On the subject of presidential immunity, Havi was categorical that the President is not above the law and that he must be checked whenever he veers off.
“The President is not the King; the President of Kenya is not a pharaoh. The President is a servant of the people of Kenya. He exercises delegated executive power and he must be brought to check if he veers off,” he told the court.
The three-day hearing will conclude on Wednesday before the bench retreats to write its verdict.
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