President cannot be both a player and an umpire, Supreme Court rules

The Supreme Court ruled that the President cannot use the popular initiative to amend the constitution, arguing that the provision is exclusively reserved for ordinary citizens.

That Thursday verdict dealt President Kenyatta and ODM leader Raila Odinga a huge blow as it slammed the door shut on constitutional amendments through the Building Bridges Initiative (BBI).

In a 5-2 decision, the judges said the Head of State cannot lead a constitutional drive using Article 257 of the constitution.

This route involves collection of at least a million signatures, winning the support of more than half of the 47 county assemblies, approval by two-thirds of legislators in both houses of Parliament, before a referendum.

Five judges agreed that President Kenyatta initiated the popular initiative, making the Constitutional Amendment (Bill), 2020, unconstitutional. Justices Isaac Lenaola and Njoki Ndung’u dissented.

Not promoter of BBI

While Justice Lenaola ruled that the President was barred from starting a popular initiative, he said Mr Kenyatta was not the promoter of the BBI.

Although Chief Justice Martha Koome lauded Mr Kenyatta’s ambitions to amend the law as “acts of statesmanship within the constitution”, she affirmed both the High Court’s and Court of Appeal’s findings that the President cannot initiate amendments through a popular initiative.

“A popular initiative is supposed to be triggered from below, as the initiative of the citizens as opposed to representative institutions. It is intended to give citizens acting outside the institution of the state a means to exercise their sovereign power,’’ Justice Koome stated.

“State organs being no bearers of direct sovereignty have no right to activate the popular initiative, which is a preserve of the citizens.” She insisted that the President cannot be both a player and an umpire in the amendment process.

Amend key provisions

The Constitution of Kenya Amendment Bill, 2020, borne out of the ‘Handshake’ between President Kenyatta and Mr Odinga in 2018, sought to amend key provisions in the supreme law.

“The President is ineligible to directly or indirectly initiate a constitutional amendment under the popular initiative. He cannot act as an ordinary citizen, because he is not, and still claim to exercise executive authority. He cannot run with the hare and hunt with the hounds,” Justice William Ouko said.

The judge disagreed with former Dagoretti South MP Dennis Waweru and Suna East MP Junet Mohamed’s assertions that the President was not the promoter of the BBI Bill 2020.

He opined that President Kenyatta, in fact, spearheaded the process since its inception and only passed on the baton to the secretariat.

“Although the secretariat does not disclose its origin, the great grandfather is the ‘Handshake’, the grandfather is the task force, its father is the steering committee and the surname of all is the BBI,” Justice Ouko stated.

Justice Lenaola took into account Kenya’s political context and opined that the President’s significant political muscle enables him to institute constitutional amendments through alternative means.

Kenya’s history

Kenya’s history took centre stage in the findings of judges Smokin Wanjala and Mohammed Ibrahim.

Justice Wanjala described Kenyans as “terrified, tormented and dehumanised due to an imperial presidency under the previous constitution” and held that under the current laws, the Head of State cannot institute a popular initiative.

Justice Ndung’u faulted the High Court’s interpretation of Article 257 as judicial overreach and affirmed the President’s political rights and powers to initiate a popular initiative.

“The is no historical evidence that the drafters of the constitution intended that the president be excluded from the popular imitative amendment route or that it be limited to a certain class of people to the exclusion of others,” she said.

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