BBI opponents: Uhuru abused power in pushing for changes

 

Opponents of the Building Bridges Initiative (BBI) yesterday hinged their case on the argument that President Kenyatta abused State power to push a drive to change the Constitution.

They also defended the High Court judges who stopped the process.

The respondents in the appeal filed by the President, the Independent Electoral and Boundaries Commission (IEBC) and the BBI Secretariat said the High Court was right in halting plans to change the Constitution “illegally”. 

On the day reserved for petitioners who successfully argued for the halting of the BBI, the team that includes Dr David Ndii, Ms Jerotich Seii, Dr Wanjiru Gikonyo and Thirdway Alliance chairman Waweru Miruru, urged the judges to uphold the High Court decision “and protect the Constitution”.

Law Society of Kenya (LSK) president Nelson Havi, who appeared for Dr Ndii, said Mr Kenyatta swore to defend the Constitution and must remain President at all times.

“If he wants to engage the affairs of lesser mortals, he should step down. The President is a superior mortal,” Mr Havi said.

The LSK boss added that before Kenya chose a pure presidential system of governance in 2010, there was an “impure” one from 1964 to 2008. 

Executive-driven plan

He said Kenya had a hybrid presidential-parliamentary system in 2008 during the coalition government.

The Constitutional Amendment Bill, 2020, he said, proposed 74 changes in the supreme law and the High Court ruled that each of the proposed amended clauses must be presented as a separate referendum question.

Mr Havi said the Bill seeks to create a hybrid presidential-parliamentary system, thereby altering the basic structure of the Constitution without following the correct channels.

Mr Havi said that an Executive-driven plan to amend the Constitution is neither voter-driven nor Parliament-led.

Justice Patrick Kiage asked Mr Havi if the President can take part in a demonstration, if Parliament turns rogue. 

“Can’t he turn to the people and make a direct appeal to them?” Justice Kiage asked.

“No, he cannot. If he wants to, he must abdicate,” he said.

Popular initiative

Mr Havi said the High Court is always called to intervene when rights are violated or threatened or when the Constitution is contravened or threatened with contravention.

He said the issues raised in the petitions before the High Court called on the judges to consider if the amendments are inconsistent with the Constitution.

The LSK president said the principle of separation of powers does not bar the High Court from intervening as the judges were asked to determine the validity of the constitutional amendments by popular initiative.

“I plead with you to dismiss the appeal and affirm the decision made by the High Court. You owe this to the people of Kenya,” he told the judges.

Ms Esther Ang’awa, another lawyer, said IEBC was wrong to say it didn’t have to verify the signatures as submitted by the BBI Secretariat.

She added that the High Court rightly observed that the Bill could not be transmitted to county assemblies for approval before public participation and verification of signatures.

Threat to the Constitution

Verifying BBI supporters’ signatures, Ms Ang’awa said, entailed confirming if they were registered voters.

“It was conceded that there was no repository of signatures and there was no legislative framework on verification. It must be verified that the signatures belong to the people,” she said.

The lawyer said the High Court also ruled that the Bill could not be subjected to a referendum before IEBC carried out a nationwide voter registration.

Mr Elias Mutuma, who represented Mr Miruru, said it wasn’t true that there was no dispute and therefore the case was misplaced.

“We as the petitioners thought there was a threat to the Constitution. We sought the intervention of the courts for protection and interpretation of the threats,” he said.

Mr Mutuma added that President Kenyatta started the process in his official capacity and it was not true to say the initiators were the BBI Steering Committee co-chairmen Junet Mohamed and Dennis Waweru.

He said Mr Kenyatta initiated the changes after receiving the BBI report on October 19, 2020.
Mr Mutuma said the appellants should have been truthful by disclosing who the initiator of the amendments was.   BY DAILY NATION