NAIROBI, Kenya, Mar 31- Lady Justice Njoki Ndung’u on Thursday stated that President Uhuru Kenyatta did not initiate the constitutional amendments process, through the Building Bridges Initiative (BBI).
In her judgement, Justice Ndung’u however explained that the President can initiate the process either in his personal or official capacity since he is democratically elected by Kenyans.
“I perused carefully all the judgements, looking for proper reasons for the decision to exclude the President from the amendment process and I cannot find a logical constitutionally based explanation,” she stated.
She said Kenyans have a right to enjoy representation from their duly elected leaders, through whom they can exercise sovereign power.
“The President is legally elected by Kenyans and therefore can exercise delegated sovereign power on behalf of the electorates,” she stated.
She further argued that entrusting citizens with public office does not ‘muzzle’ them from exercising their rights as Kenyan citizens as enshrined in the constitution.
“Limiting the ability of elected leaders from exercising this right is in itself limiting the people from exercising their powers,” she noted.
She is so far the first judge to agree that a President can initiate a popular initiative.
On her part CJ Koome noted that a popular initiative is reserved for the common wananchi, and not available for the President.
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,” CJ Koome stated.
Justice William Ouko pointed out that the President is ineligible to initiate a constitutional amendment through the popular initiative.
He further argued that the suggestion that Dennis Waweru and Junet Mobammed were the initiators of the BBI Bill and not the President cannot be accurate.
“The president can not purport to act as an ordinary citizen because he is not.” Justice Ouko stated.
Justice Lenaola also affirmed the President’s ineligibility to initiate the process.
“The president cannot initiate a popular initiative and then go back to sit as president again to ascent to the same initiative” Justice Lenaola stated.
