Lawyers poke holes into ruling as BBI court battle begins

Mr Kihara, through several lawyers, including Solicitor-General Kennedy Ogeto, said anybody can start amending the Constitution by popular initiative under Article 257 and that the High Court was wrong to fault President Kenyatta for doing so.

Mr Ogeto told justices Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott that nothing in the Constitution bars the President from starting such a proposal.

“There is also no basis for the claim that popular initiatives are, by definition, anti-government. This regrettable claim resulted from the learned judges’ reliance on Wikipedia. Wikipedia cannot, surely, be a reliable authority,” he said.  

Mr Kamau Karori, another lawyer, described the decision  as “erroneous”, saying, the President has rights and can make suggestions to the people. 

Sovereign power

“He is nominated by a political party and is entitled to support the cause of his party,” Mr Karori told the court. 

The High Court judges, he added, halted a political process, thereby unconstitutionally limiting the sovereign power of the people to determine their destiny. Mr Karori said the judgment undermined the authority and mandate of the President “to the detriment of the greater public interest”.

“It was wrong for the judges to say public officers cannot participate in a popular initiative for the amendment of the Constitution and can only propose the changes through Parliament and that the popular initiative is a preserve of private citizens. 

“They made no reference to any provision of the Constitution to support it,” Mr Karori said.

The judges who quashed the BBI Bill, he argued, disenfranchised millions of Kenyan voters under the pretext of nullifying alleged unconstitutional acts by the President.

“The judges did this through personalised attacks against His Excellency the President that climaxed in factually and legally unfounded conclusions. An example is that a President can be sued in a personal capacity for official acts,” Mr Ogeto said in submissions filed in court.

Adverse proceedings

If not overturned, Mr Ogeto said, the decision would open adverse proceedings against the person of the President through a multiplicity of legal proceedings thus impairing the performance of the functions and exercise of the accompanying executive powers under the Constitution.

On the basic structure doctrine, Senior Counsel George Oraro argued that it has no place to be applied in the Constitution.

“Instead of determining the provisions of the Constitution that were not followed, the judges came up with a structure which requires the court to determine whether amendment touches on basic structure,” he said.

Mr Oraro said Kenyans deliberately avoided the basic structure doctrine and chose a different method of safeguarding the fundamental provisions of the Constitution. The method is laid down in Chapter 16, he added.

By stating that some aspects of the Constitution cannot be amended, Mr Oraro argued, the judges placed more weight on academic writings that support the basic structure doctrine but did not give sufficient consideration to overwhelming academic writings that state the doctrine is not a universal constitutional principle and consequently, courts should approach it with caution.

He said that by the ruling, the judges decreed that whenever the people want to amend the Constitution, it would be important to seek a court’s guidance in advance to determine whether the proposed changes are or are not amendable.

Senior Counsel James Orengo accused the High Court of a desperate attempt to prove the applicability of the doctrine of basic structure to the Kenyan context, arguing that the issue for determination is not the basic structure but amendability of the Constitution. 

The private citizen

“The court should have warned that even as it dealt with it, the doctrine doesn’t exist in the constitution. A dictatorship, a monarch, and even theocracy can be a basic structure. In the US, slavery was part of basic structure before emancipation and in Kenya one-party rule was also part of the basic structure until section 2 (A) was amended. The question that should concern this court is amendability,” Mr Orengo said. 

Mr Oraro further submitted that if not overturned, the judgment risks transforming courts into policymakers, thereby usurping the people’s freedom to determine the terms of the social contract and how they wish to change those terms.

“You cannot deny the people the right to have a referendum. It is their right,” he said.

Quashing the drive to amend the Constitution in May, five High Court judges faulted the President, saying, he does not have the constitutional mandate to initiate constitutional amendments through a popular initiative.

The judges said the power to amend the Constitution by popular initiative under Article 257 of the Constitution is reserved for the private citizen and neither the President nor any State organ is permitted to initiate constitutional amendments using the route.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka said that while the President’s efforts to unite the nation are to be lauded, he cannot initiate any move disguised as a popular initiative to amend the Constitution, and that in taking the initiative, he failed to respect, uphold and safeguard the Constitution. The hearing continues.

[email protected]; [email protected]