NAIROBI, Kenya, Mar 31– Chief Justice Martha Koome on Thursday affirmed Appeal Court’s ruling that the President cannot initiate a popular initiative.
While delivering the BBI ruling at the Supreme Court, CJ Koome argued that a popular initiative should be citizen-driven and a citizen-centered process thus excluding the state institutions and the President from initiating the process.
Both the High Court and the Appellate Court found that the President had no authority to promote the amendment of the Constitution through a popular initiative and that he can be sued with respect to his actions or omissions in the Constitution.
“I have endorsed the finding of the two superior courts that the President cannot initiate constitutional amendments via the popular initiative route,” she stated.
Chief Justice Martha Koome said there is enough evidence that the president initiated the BBI process since state resources were used to support the process.
Koome stated that a popular initiative is intended to give citizens an opportunity to exercise their sovereign power and not delegated sovereign power.
“Direct democracy can only be exercised by the people and not through their representatives,” Koome stated.
Koome however differed with the two courts on the issue of the basic structure doctrine, noting that it is inapplicable in Kenya.
She further faulted the two courts for creating a ‘fourth pathway’ to amendments.
