President William Ruto’s plan to create a powerful office for Azimio la Umoja One Kenya Coalition leader Raila Odinga has run into fresh headwinds, with the lawyers’ body asking Parliament to shoot it down, saying the Head of State was in contravention of the law.
The Law Society of Kenya (LSK), which argued for the quashing of Building Bridges Initiative (BBI) constitutional amendment process led by former President Uhuru Kenyatta and Mr Odinga, now says Mr Ruto was walking on the same path declared unconstitutional by the Supreme Court.
LSK says Dr Ruto’s proposals to Parliament to create the Office of the Leader of Opposition, change the formula to achieve the two-thirds gender rule, and entrench a Senate Oversight Fund and the constituency fund in the Constitution, will fall on the same sword BBI fell, and for the same reasons.
“We call upon Parliament to protect the Constitution and for the citizens of Kenya to rise up to the occasion. We call upon the Speaker of the National Assembly to note that the proposed amendments are unconstitutional. The amendments are being initiated by the President contrary to the decision in the BBI case and they should therefore not see the light of day. There is a clear precedent that has already been set by the courts on the matter,” LSK President Eric Theuri said in a statement yesterday.
While making reference to the Supreme Court ruling during the BBI petition, Mr Theuri said the amendments have been initiated by the President yet the courts had already set a precedent on the matter by ruling that the President cannot be involved in any process to amend the Constitution under Article 257. He has also urged National Assembly Speaker Moses Wetang’ula to reject the proposed amendments.
The LSK President said the proposals undermine Chapter One of the Constitution on the sovereignty of the people of Kenya.
He also said the proposed amendments affect the overall structure of Parliament and the Executive and must go through a referendum.
“The amendments as proposed by the President, fall under the scope that requires a referendum. If pursued through Parliament, the sovereignty of the people of Kenya will be undermined. In a democratic society such as Kenya, the sovereignty starts with the people and therefore the amendment should be initiated in line with Article 256 and 257 of the Constitution,” Mr Theuri said.
Mr Theuri also criticised President Ruto over his proposal to give Cabinet Secretaries and Chief Administrative Secretaries (CAS) a chance to attend Parliament.
This, Mr Theuri said, goes against the principle of separation of powers.
“That the memorandum by the President is proposing the amendment of the standing orders to accommodate the CSs and CASs presupposes an expected outcome of the ongoing litigation before the court. This undermines the authority of the court and shakes the confidence of the legal profession and the public in the justice system,” he said.
The proposed amendment is likely to initiate a legal battle even as Mr Theuri said that LSK will not hesitate to go to court should Parliament pass the proposed amendments.
In the BBI judgment, the Supreme Court had ruled that the President cannot initiate an amendment through the popular initiative because the amendment process through popular initiative is a preserve of ordinary Kenyans. The Office of the President is an executive office that enjoys numerous privileges.
The Constitution only allows constitutional amendments through parliamentary initiative as long as the issues to be amended do not touch on matters, including the Supremacy of the Constitution, territory of Kenya, sovereignty of the people, national values and principles of governance, Bill of Rights, terms of office of the President, independence of the Judiciary, functions of Parliament and the structure of the devolved government. If the proposed amendments touch on the above issues, then a referendum should be carried out.
In his memo addressed to Mr Wetang’ula and his Senate counterpart Amason Kingi, Dr Ruto urged Parliament to carry out a law reform process that touches on four issues namely the creation of the office of the Leader of Official Opposition, the gender rule, the National Government Constituency Development Fund and parliamentary oversight of the Executive.
According to Dr Ruto, the office of the opposition will play a key role in institutionalising governance, strengthening the oversight role of the opposition and the development of democracy.
But in a quick rejoinder, the opposition came out guns blazing on the proposed amendments, accusing Dr Ruto of plotting to get rid of the two-term presidential limit that has been outlined in the Constitution.
ODM nominated MP John Mbadi criticised the timing of the amendment and indicated it’s a long game plan for Mr Ruto to get rid of the presidential term limits.
He noted as suspicious for the Head of State to initiate an amendment to the Constitution barely four months after being sworn in.
Mr Mbadi pointed out that encouraging a President, who has just been elected, to initiate a constitutional amendment is setting the country on a dangerous path.
“It was right when former President Uhuru Kenyatta engaged on the process because he was on his final days in office. President Ruto is testing the waters. Tomorrow he might come with something else... that he wants to amend the Constitution to remove the 10-year term limit,” he said.
“ODM leader Raila Odinga does not require a soft landing. His space in Kenyan politics has naturally been given by the people,” added Mr Mbadi in Kisumu.
