Prime Cabinet Secretary Musalia Mudavadi.
Prime Cabinet Secretary Musalia Mudavadi’s push to amend the Constitution through a popular initiative—aimed at extending the presidential term, increasing the number of constituencies and introducing other changes—risks suffering the same fate as the Building Bridges Initiative (BBI), with critics warning that it contradicts a Supreme Court ruling.
Suba South MP Caroli Omondi, who chairs the National Assembly Constitutional Implementation and Oversight Committee (CIOC), cautioned that the proposal should not be entertained.
“If they are floating a balloon to test the waters, they should know the whole thing is unconstitutional. The president’s term is five years and you cannot extend it through extra-constitutional means,” said Mr Omondi, a lawyer.
Suba South MP Caroli Omondi.
In a landmark decision on March 31, 2022, the Supreme Court declared the entire BBI constitutional amendment process unconstitutional, null and void. The court ruled that the power to amend the Constitution is reserved for private citizens exercising their sovereign authority directly or through Parliament.
Despite the ruling, Mr Mudavadi—whom critics accuse of being used by President William Ruto’s administration to delay the 2027 General Election—appears undeterred. He is advancing proposals similar to those contained in the BBI, including the creation of new constituencies and additional political positions, allegedly using state resources.
The BBI, initiated by former President Uhuru Kenyatta, sought, among other changes, to establish the position of Prime Minister and create 70 new constituencies—ideas that Mr Mudavadi is now promoting.
In its judgment, the Supreme Court stated that a sitting president is ineligible to initiate a constitutional amendment, either directly or indirectly, through a parliamentary initiative under Article 256 or a popular initiative under Article 257.
“He cannot act as an ordinary citizen because he is not. All actions taken in his name and on his behalf during the amendment process were carried out in his official capacity as President of the Republic of Kenya, and are therefore null and void,” the court ruled.
The judges underscored that all constitutional amendments must strictly follow the procedures set out in the Constitution, reinforcing the principles of constitutionalism and the rule of law.
Under the Constitution, amendments may only be initiated through two avenues: by Parliament via a parliamentary initiative under Article 256, or by citizens through a popular initiative under Article 257.
Beyond proposals to extend the presidential term and expand constituencies, Mr Mudavadi’s initiative also seeks to introduce the position of Leader of the Official Opposition—a move Mr Omondi strongly opposes.
“What we have is a purely presidential system of government. How, then, can we create the position of Leader of the Official Opposition, which exists only in a parliamentary system?” he asked.
Mr Mudavadi’s proposals also clash with warnings from National Treasury Cabinet Secretary John Mbadi over a ballooning public sector wage bill.
“The bloated wage bill poses a major fiscal risk to the nation’s economic stability,” Mr Mbadi has said, noting that public sector salaries—estimated at Sh80 billion a month—are crowding out funds needed for development projects and debt repayment.
The Supreme Court further held that the President cannot be “both player and umpire” in a constitutional amendment process.
Lawyer David Ochami observed that the court highlighted the inherent conflict of interest if the executive were allowed to initiate and oversee constitutional changes.
“The President, like the executive he heads, controls state resources and their allocation, giving him undue influence over an amendment process to advance executive interests,” Mr Ochami said.
The ruling also found that the BBI, which collected more than five million signatures, was not citizen-led, having originated from a presidential taskforce, and was therefore an executive initiative rather than a genuine popular one.
Under the Constitution, a parliamentary initiative requires a Bill to secure a two-thirds majority in both the National Assembly and the Senate, while a popular initiative must originate from citizens, garner at least one million signatures, pass through the IEBC, county assemblies and Parliament, and, in some cases, be subjected to a referendum.
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