Justice Fatuma Sichale has upheld the high court order that President Uhuru Kenyatta cannot be the promoter of a popular initiative.
“I agree with the high court that the president cannot initiate changes through popular initiative,” she said.
She has also agreed with the high court that the president can be sued in his personal capacity in civil matters.
Justice Sichale said the president was not served with the petition at the high court and he had a right to be heard.
“He is entitled to the protection. It was wrong for the court to proceed with the hearing without ascertaining whether he had been served,” she said.
On IEBC quorum, Justice Sichale says the verification of signatures by IEBC did not require quorum.
She said that the IEBC as currently constituted with three members is constitutionally compliant.
“Therefore it can carry out its mandate. The issue of verification of signatures is not a policy but operational decision,” Sichale said.
“Verification of signatures was not null and void due to lack of signatures.”
This is contrary to what Justice Francis Tuiyott said in his judgment on the Building Bridges Initiative.
Tuiyott upheld the decision by the High court which ruled that IEBC had quorum when it embarked on the referendum’s verification of signatures.
“IEBC should have filled the vacant positions. IEBC should carry out its functions with all hands on deck,” he said on Friday.
Tuiyott said the Statute fixes the composition of IEBC to seven and a quorum of five which has not been challenged. BY THE STAR