President Enjoys All Rights, Can Initiate Popular Initiative – Justice Njoki

The President has full rights and is a citizen like everyone else, according to Justice Njoki Ndung’u, and he can also initiate a public initiative.

“No law limits his rights including political rights like initiating constitutional change. Giving him office does not muzzle his rights. All Kenyans are equal,” said the Supreme Court judge.

The basic structure concept, according to Justice Njoki, has only been acknowledged in a few nations and has not progressed to a norm of international broad application.

She went on to say that the Constitution cannot regulate constituent authority. Unless otherwise specified by legislation, four sequential steps are not required.

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“The popular initiative is about numbers, 1 million signatures, half the county assemblies, two-thirds in parliament, and a simple majority in the referendum.

“It is the numbers that count,” she ruled.

“We don’t need to worry about the President overstepping. Both Kenyatta and Moi were members of Parliament and used that to amend the Constitution repeatedly.”

Justice William Ouko, on his part, noted that popular initiative can only be carried out by ordinary persons.

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In his judgement, he stated that the president started the procedure from the beginning and subsequently passed it on to the Secretariat of the Building Bridges Initiative (BBI), and that he cannot operate as a regular citizen.

Dennis Waweru and Junet Mohammed were alleged to be the BBI’s promoters, although he refuted this claim.

“There is some evidence of state involvement in the BBI process,” he ruled.

“The president commenced and spearheaded the process and only passed the baton to the two co-chairs very late in the day, he cannot act as an ordinary citizen.”

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He ruled that the president cannot act as an ordinary citizen because he is not. “The entire process was irredeemably flawed.”

Chief Justice Martha Koome also stated that public engagement was not carried out correctly during the BBI process, particularly on the Bill’s second schedule.

He also held that legal actions against the president cannot be brought while they are in office.

Justice Ouko also concurred with Chief Justice Koome’s conclusion that the basic framework is not applicable to Kenyan law. On the matter of basic structure, he overturned the findings of the two lower courts.

“In interpreting the Constitution, courts must give directives and not leave more questions than answers, thus they should ensure their rulings are unambiguous – not open to more than one interpretation,” the judge said.

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He also ruled that Parliament cannot be utilized to change the Constitution, criticizing India’s lower courts for doing so.

“Just like India and Germany where the basic structure was applied, it was based on their own history. Constitution of a country is based on their own unique distinction,” he said.